M/S S D INTERNATIONAL v. M/S D D SYENTHETIC (P) LTD & ANR

1. The present leave petition assails the order dated 14.10.2014 passed by the learned Metropolitan Magistrate, Saket Courts, Delhi in CC No.4431/1 titled as “M/s. S.D. International vs. Sumit Seth & Anr.” under Section 138 of the Negotiable Instruments Act, 1881 whereby the said complaint instituted on behalf of the petitioner was dismissed for non-prosecution as well as non-appearance. 2016:DHC:1731-DB

2. Learned counsel appearing on behalf of the leave petitioner states that on account of the circumstance that he inadvertently recorded the next date of hearing in the said CC No.4431/1 incorrectly, they were unable to appear before the concerned Magistrate on the day when the matter was dismissed for non-prosecution.

3. In view of the foregoing, in my view, the present petition seeking leave to appeal must be granted.

4. Ordered accordingly.

5. The leave petition is allowed and disposed of accordingly. CRL.A. /2016 (To Be Numbered)

6. After hearing counsel appearing on behalf of the appellant as well as respondent No.1, the present appeal is being disposed of by way of this order.

7. Learned counsel appearing on behalf of the appellant, who also represented the leave petitioner before the concerned Magistrate, has already explained the reason for the non-appearance of the appellant as well as his counsel before the concerned Magistrate on the date when the CC No.4431/1 came to be dismissed for non-prosecution.

8. In my view, sufficient cause has been demonstrated by the appellant for their non-appearance before the concerned Magistrate on the relevant day. The inadvertent mistake made by the appellant was neither intentional nor deliberate.

9. In the present appeal, it is observed that the CC No.4431/1 under Section 138 of the Negotiable Instruments Act, 1881 was dismissed for nonprosecution and has not been heard and adjudicated on merits.

10. In view of the said circumstances, in my opinion an opportunity has to be granted to the appellant/complainant to prosecute the complaint before the Magistrate on merits.

11. The present appeal is consequently allowed. The impugned order dated 14.10.2014 passed by the learned Metropolitan Magistrate in CC No.4431/1 titled as “M/s. S.D. International vs. Sumit Seth & Anr.” is restored to its original number and remanded back to the Court of the concerned Magistrate subject to payment of Rs.2,000/- (Rupees Two Thousand Only) as costs to respondent No.1 within a period of four weeks from today.

12. List the matter before the concerned Magistrate on 14.03.2016 for hearing and adjudication of the above mentioned complaint in accordance with law.

13. The appeal is disposed of accordingly.

14. A copy of this order be sent to the concerned Magistrate for necessary compliance.

SIDDHARTH MRIDUL, J FEBRUARY 29, 2016 dn