Dhansi Ram & Sons vs Shri Sunil Bajaj
1999 Latest Caselaw 1065 Del

ORDER

Crl. M(M) No. 1261/99

1. By this petition under Section 482 Cr.P.C., the petitioner seeks quashing of the order dated 18.2.1998 passed by the Metropolitan Magistrate, Delhi dismissing the petitioner's complaint in default.

2. Briefly, stated the facts giving rise to this petition are that the petitioner filed a complaint under Section 138 of the Negotiable Instruments, Act against the respondent. On 18.2.1998, the complainant was absent. The complainant's counsel moved an application claiming exemption from personal attendance, which was dismissed by the trial Court. After dismissing the said application, the learned Magistrate also dismissed the complaint in default. Aggrieved thereby, the petitioner has come up before this Court under Section 482 Cr.P.C.

3. It is significant to mention that the complainant is a propriety firm and the complaint was filed through its proprietor Prakash Chand Goyal on 18.2.1998, the petitioner firm being the juristic person was duly repre-sented by its counsel. That being so, the complaint could not have been dismissed in default. That apart, there is nothing in the impugned order to indicate as to how on that day the presence of the complainant was necessary for further progress of the case. Where the presence of the complainant is not necessary, the Court should use its discretion and should not dismiss the complaint in default. Thus, the learned Magistrate has committed a patent illegality in dismissing the complaint in default, which has resulted in flagrant miscarriage of justice. Consequently, the impugned order dated 18.2.1998 cannot be allowed to stand.

4. In the result, the petition is allowed and the impugned order dated 18.2.1998 is set aside. The complaint is restored to its original number. The learned Metropolitan Magistrate is directed to proceed with the trial of the case in accordance with law.

5. Parties are directed to appear before the trial court on 29.11.1999.