Plaza Cables Electric Pvt. Ltd. vs Mr. Kamal Khurana
2006 Latest Caselaw 1928 Del

JUDGMENT

S.N. Aggarwal, J.

1. The appellant in this appeal is aggrieved by an order dated 13.01.2006 passed by Mr. Manoj Kumar, MM, Rohini Court, New Delhi in Criminal Complaint No. 216/2003 under Section 138 of Negotiable Instruments Act, 1881 dismissing the said complaint in default for non-prosecution.

2. On the date the complaint under Section 138 of Negotiable Instruments Act was dismissed in default for non-prosecution, it was listed for arguments on charge. Before the date the said complaint was dismissed in default, the said complaint was pending in Tis Hazari court where the last date was 13.05.2005. On establishment of a new court complex of the District Court at Rohini, the aforementioned complaint was transferred from Tis Hazari to Rohini court and was to be taken up for hearing there on 13.01.2006. The lawyers were agitated by establishment of new court complex at Rohini and at that time the lawyers remained on strike for a long time. Consequent upon transfer of complaint case of the appellant from Tis Hazari to Rohini court, the appellant was required to appear before the Rohini court on date fixed i.e. 13.01.2006. Since nobody appeared on his behalf on that day, the complaint was dismissed in default vide impugned order. The reasons for non appearance given by the appellant are stated in paras 7, 8 & 9 of the Memorandum of Appeal and the same are reproduced hereinbelow:

7. That on 13.01.2006, the counsel for the appellant intimated the appellant that the lawyers in the Tis Hazari Courts are abstaining from work since 02.01.2006 and therefore, the appellant was required to attend the case alone. Thereafter, the authorized officer of the appellant came to court on 13.01.2006 for attending the hearing but was told by the court staff that the court of Sh. Sandeep Yadav, Metropolitan Magistrate has been abolished and the case of the appellant has been transferred to some other court. It may be pertinent to mention that the lawyers in Tis Hazari were abstaining from work on 13.01.2006 and thus the lawyer of the appellant could not appear.

8. That the authorized officer of the appellant tried to enquire about the case and ultimately at around 2 PM, he was told by the court staff that the matter has been transferred to Rohini court. It is submitted that no name of the judge was told to the appellant. The appellant was also informed that for locating the court of concerned judge at Rohini, the court of ACMM, Rohini courts be approached.

9. That thereafter the appellant reached the Rohini court at about 3 PM and after enquiring, he was told that the case of the appellant has been assigned and marked to Sh. Manoj Kumar, Metropolitan Magistrate, Rohini, Delhi. The appellant reached the court of the learned Metropolitan Magistrate and was informed that case has been dismissed by the court in default on account of non appearance on behalf of the complainant.

3. The authorized representative of the appellant has filed his affidavit in support of the aforementioned grounds. I have no reason to disbelieve the same.

4. The learned Counsel appearing on behalf of the respondent has contended that he had carried out the inspection of the record of the court below and on inspection, he found that the file of the complaint case in question was transferred from Tis Hazari to Rohini on 06.01.2006 and therefore the appellant ought to have appeared before the trial judge at Rohini court on 13.01.2006. A perusal of the impugned order which is at page 24 of the appeal paper book, reveals that the complaint was dismissed by the Judge at Rohini at 12:30 PM on 13.01.2006. However, the reason for non appearance given by the appellant as reproduced hereinabove would show that the appellant came to know that his case was transferred from Tis Hazari to Rohini at 2 PM and therefore, he has adequately explained the reason for his non appearance before Rohini court by the time his complaint was dismissed in default. I am of the view that the appellant has made out a case for restoration of his complaint. Even otherwise, I am of the view that the technicalities should not block the road for justice. There is no adjudication of rights and liabilities of the parties on merits. No prejudice shall be caused to the respondent in case the parties are heard on merits of the grievance raised by the appellant in his complaint under Section 138 of the N.I. Act.

5. In view of the above and having regard to the circumstances of the case, the impugned order is set aside. This appeal is allowed. The case is remanded back to the concerned trial court for decision on merits in accordance with law. The parties are directed to appear before the trial court at 2 PM on 13.11.2006. A copy of this order be sent to the trial court for information and necessary compliance.