* HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.A.13867/2009 & CRL. L.P. No. 245/2009
Date of Decision : 30.04.2012
AVYA GLOBAL CONNECT LTD. ...... Petitioner
Through: Mr. D. Bhattacharya &
Mr. Piyush Sharma, Advs.
Versus
TRUSTRON DEVICES P. LTD. & ANR. ...... Respondents
Through: None
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
1. This is a leave to appeal filed by the petitioner against the order dated 20.9.2008 passed by the Addl. Chief Metropolitan Magistrate, dismissing the complaint of the petitioner under Sections 138 and 141 of the Negotiable Instruments Act, 1881 (NI Act) in default.
2. Briefly stated, the facts of the case are that the petitioner had filed a complaint under Sections 138 and 141 of the NI Act against the respondents on the ground that the respondent no.2 had issued two cheques for a sum of Rs. 13,06,758/- and 16,52,956/-, totaling Rs. 29,59,714/- on account of the discharge of the liability. It is alleged that the cheques, on presentation, were returned unpaid with the Returning Memo Crl.L.P.No.245/2009 Page 1 of 5 dated 9.8.2007, stating "exceeds arrangement". It is alleged that a Demand Notice, dated 8.8.2007, was sent to the respondents, requiring them to make the payment on account of dishonour of cheques and since this was not done, a complaint under Sections 138 and 141 of the NI Act was filed on 20.9.2007.
3. The petitioner adduced pre-summoning evidence and the learned Magistrate passed an order of summoning against the respondents. The petitioner did not appear on 20.9.2008 despite the case having been called three times and ultimately it was dismissed in default at 2:15 P.M.
4. Feeling aggrieved by the said dismissal order, the petitioner has filed the present leave to appeal. The leave to appeal is accompanied by an application seeking condonation of 350 days in filing the leave to appeal. In the application seeking condonation of delay, it has been mentioned that the Clerk of the appellant had noted down the date wrongly as 20.9.2009, because of which the matter could not be attended on 20.9.2008 when it was actually listed and thus it was dismissed in default. It is stated that the absence of the petitioner was beyond his control. The application is supported Crl.L.P.No.245/2009 Page 2 of 5 by an affidavit of Subhashis Sur, the Regional Director of the petitioner company.
5. I have heard the learned counsel for the petitioner and have perused the record.
6. The matter has been pending in Court since 30.11.2009, without any fruitful progress. The application for seeking condonation of delay, in my opinion, does not constitute „sufficient cause‟ on account of two reasons. Firstly, it is totally unbelievable that when the case was being fixed for service of the respondents by the learned Trial Court, such a long date of 14 months would have been given by the learned Trial Court. As a matter of fact, in the District Courts, the period for service and miscellaneous purposes does not travel beyond 6 to 9 months on an average. This point gets verified by the fact that that it has been alleged by the petitioner that the date was wrongly noted by his Clerk but the name of the Clerk, the date on which he learnt about the wrong noting of the date and his affidavit in support of the averments of the application has not been filed.
7. Secondly, even the application seeking condonation of delay has been drafted so casually that the words „sufficient cause‟ Crl.L.P.No.245/2009 Page 3 of 5 have also not been used in the application. It seems that the appellant had probably initiated some civil suit and was not keen to prosecute the respondents on the criminal side. Otherwise, if the appellant would have been vigilant enough, then it would have certainly followed-up the case properly, as the amount of cheque was quite heavy.
8. The conduct of the petitioner has been grossly negligent and indolent which cannot, by any stretch of imagination, be said to be constituting „sufficient cause‟. As a matter of fact, condoning the delay would amount to putting premium on the negligent behavior of the petitioner. The Delhi Courts are already clogged with more than 7 lacs cases under Section 138 of the NI Act. Substantial number of these cases are not properly followed by the parties, thus leading to the unnecessary burden on the Courts and the wastage of time. This would be evident from the present leave to appeal also that has been filed in the year 2009. It is pending for the last three years only for the disposal of the application for condonation of delay.
9. I, accordingly, feel that this is not a fit case where the delay of 350 days, which is almost a year, deserves to be condoned. Crl.L.P.No.245/2009 Page 4 of 5 Accordingly, the application seeking condonation of delay is dismissed.
10. Since the application for condonation of delay itself has been dismissed, therefore, the leave to appeal also stands dismissed.
V.K. SHALI, J.
APRIL 30, 2012 tp Crl.L.P.No.245/2009 Page 5 of 5