Lintas India Pvt. Ltd. vs Mid East India Ltd. And Anr.
2007 Latest Caselaw 1593 Del

JUDGMENT

Shiv Narayan Dhingra, J.

Crl. M.A. No. 3748/2007

For the reasons stated in the application, the delay is condoned. Application stands disposed of.

Crl. L.P. No. 55/2007

Leave to appeal is granted for the reasons stated in the application.

Criminal Appeal No. 503/2007

1. The appellant's complaint under Section 138 of Negotiable Instruments Act was dismissed on 14th November, 2006 by the Court of learned Metropolitan Magistrate vide following order:

14.11.06 11.00 A.M.

Present : None for both the parties.

Be awaited MM/ND 02.30 P.M.

Present : Counsel for accused.

None for complainant.

It appears that complainant is not interested in prosecuting the present case. The case is hereby dismissed in default for non prosecution. File be consigned to RR.

MM/ND 14.11.06.

2. The appellant has preferred this appeal on the ground that on 12th May, 2006 the matter was adjourned on joint request for compromise. The appellant got the impression that his complaint has been transferred to Lok Adalat and as and when it will be listed for hearing, a notice would be served on him and he did not appear before the learned Metropolitan Magistrate on 4th August, 2006 and 14th November, 2006. The non appearance was not deliberate. The Court of Metropolitan Magistrate did not issue any court notice before dismissing the complaint. The appellant has been appearing before the Court either personally or through his counsel on all previous hearings. The order of learned Metropolitan Magistrate was perverse and suffered from material infirmities. The other ground taken was that under Section 256 of Cr.P.C. the court of Metropolitan Magistrate was not bound to dismiss the complaint.

3. A perusal of the order dated 13th April, 2006 shows that on that day both the parties sought time for compromise and prayed for adjournment in second week of May. In view of this request, the court fixed the case for 12th May, 2006. On 12th May, 2006 Presiding Officer was on leave and the Link Metropolitan Magistrate fixed the case for compromise on 4th August, 2006 at the joint request of parties. Thus, the plea taken by the appellant that since the matter was fixed for compromise, the appellant was under impression that it would be now sent to Lok Adalat is an absurd and baseless plea. This impression was not gathered by appellant on 13th April, 2006 when at the joint request the matter was fixed for compromise on 12th May, 2006 and appellant counsel appeared on 12th May, 2006. Thus, the reasons given for non appearance of the appellant on 4th August, 2006 is absolutely false. Despite non appearance of the appellant on 4th August, 2006 the learned MM did not dismiss the complaint and exercised the discretion of adjournment and adjourned the matter to 14th November, 2006. On 14th November, 2006 again the complainant did not appear. The learned Metropolitan Magistrate had no option but to dismiss the complaint. The plea taken by the appellant that the court should have issued a court notice, is also a baseless plea. Once a complainant files complaint in the court, it is the complainant who has to pursue his complaint and appear either through counsel or personally on all dates of hearing. There is no provisions for issuance of court notice to a complainant who fails to appear before the court repeatedly despite knowing the date. Neither, I consider that Court has a duty to give wake up calls to the sleeping litigants. A person, who files complaint has to be vigil about his complaint.

4. The reliance has been placed by the appellant on decision of this Court in Krishan Kumar Gupta v. Mohammed Jaros and Anr. , wherein this Court observed that Section 256 Cr.P.C. gives options to the Magistrate either to dismiss the complaint or to adjourn the case for some reasons, if the Magistrate thinks that it is proper to adjourn the case. Reliance is also placed on decision of Hon'ble Supreme Court in Associated Cement Co. Limited v. Keshvanand , wherein Hon'ble Supreme Court observed as under:

Reading the section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the section. First is, if the Court thinks that in a situation it is property to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.

5. In the present case the adjournment was sought twice by complainant for compromise. After seeking adjournment twice for compromise, the complainant did not appear on subsequent two hearings, when the case was fixed. The personal appearance of the complainant may not have been necessary on any of the date but appearance through counsel or through representative was necessary to inform the Court as to what happened to the talks of compromise.

6. A last plea is made by the appellant that the appellant company had given the brief to the counsel and the counsel acted negligently in the case and for the negligence of the counsel the appellant should not be made to suffer. The cheques involved in this case, which were dishonoured, were of several lacs and the appellant shall suffer irreparable loss due to the negligence of his counsel. It is stated that in the interest of justice, the complaint should be restored.

7. It is obvious from the perusal of the appeal and the ordersheet that there was gross negligence in this case and it also seems that the counsel for the appellant not only misguided but took false plea that he considered that the case would be referred to Lok Adalat. It is a matter of common knowledge that whenever a case is referred to Lok Adalat, parties are directed to appear before Lok Adalat on a particular date and file is sent to Lok Adalat for compromise.

8. Looking into the fact that huge amount of the appellant is involved and the appellant should not be made to bear the burnt of negligence of his counsel, this appeal is allowed subject to costs of Rs. 5,000/- to be paid to the respondents. It would be appropriate that the costs is recovered by the appellant from his advocate. The appeal is allowed. The complaint is restored to its original number. Parties are directed to appear before the Court of concerned Metropolitan Magistrate on 12th September, 2007.