Delhi Schedule Castes Financial & Development Corporation Ltd v. Gopalshankar

1. Leave granted. The Registry is directed to register the criminal leave petition as an appeal.

2. The instant appeal has been filed by the appellantimpugning the order dated 10.01.2014 whereby the complaint case filed by the petitioner under Section 138 & 141 ofNegotiable Instrument Act has been dismissed under Section 256(1) Cr.P.C. by the learned Trial Court and accused/respondent has been acquitted.

3. Notice was issued to the respondent but none had appeared on behalf ofthe respondent despite servicethrough his mother.

4. I have heard learned counsel appearing on behalfofthe appellant and carefully gone through the record. CRL.L.P.334/2014 Page 1 of[3] 2016:DHC:8907

5. Vide impugned order dated 10.01.2014, the complaint case filed by the appellant under Section 138 and 141 ofNegotiable Instrument Act has been dismissed by the learned MM under Section 256(1) Cr.P.C. due to non-appearance ofthe complainant on the said date.

6. Learned counsel appearing on behalfofthe appellantsubmits that it is a case ofwrong noting ofthe date as 14.01.2014 instead of 10.01.2014. He further submits that even the process fee has been filed mentioning the date ofhearing as 14.01.2014. He has also placed on record the copy ofhis diary for the relevant dates i.e. 20.09.2013, 10.01.2014 8c 14.01.2014 as well the receipt ofprocess fee filed on 20.09.2013 for the date ofhearing 14.01.2014. Learned counsel for the appellant has further submitted that since 14.01.2014 was holiday on account of 'Makar SankrantV and 'Eid-Ul- Milad', he attended the Court on 15.01.2015 and on not finding the case mentioned in the cause list, he inquired about the same and came to know that the complaint case has been dismissed in default on 10.01.2014. He has prayed for setting aside the order dated 10.01.2014 and restoration of the complaint case as non-appearance on behalf of the complainant on the relevant date was notintentional but due to wrong noting ofthe date.

7. In this case, it was due to wrong noting of the date of hearing that authorised representative ofthe complainant company or its counsel could not appear before the learned Trial Court on 10.01.2014 when the complaint case was dismissed for non-prosecution.

8. The litigant should not be made to suffer for the lapse/bonafide mistake on the part of the counsel. Hence, the order dated 10.01.2014 passed in the complaint case bearing CC No.202/1 is set aside. The Complaint Case is restored to its original number. CRL.LP.334/2014 Page 2of[3]

9. The parties are directed to appear before the learned Trial Court on 30"'May,2016.

10. Appeal stands allowed.

11. A copy ofthis order be sentto the learned Trial Courtfor information and compliance. As prayed,copy ofthe order be given dasti to learned counsel for the appellant.

APRIL 28,2016 lTIBHA