Delhi High Court
Lt. Col. A.C. Tiwari vs Sh. Sudhir Kalra on 30 January, 2008
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. The application for condensation of delay is allowed for the reasons given therein. The application stands disposed of.
Crl. M. No. 1561/2003
The application is allowed for the reasons given therein and petition under Section 482 Cr.P.C. is treated as an appeal. The application stands disposed of.
Crl. A. No. 200/2003
This appeal has been preferred by the appellant against the order dated 20th August, 2002 whereby the complaint of the appellant under Section 138 of Negotiable Instruments Act was dismissed at 11.35 am for non-appearance of the complainant. It is stated by the appellant that 2 cheques, each of Rs. 1 2,500/- issued by the respondent, got dishonoured and thereafter the appellant filed a complaint under Section 138 of Negotiable Instruments Act before the Court of CMM. During the pendency of proceedings of this complaint, father of the accused approached the appellant on 18th April, 2002 for compromise and a post dated cheque of Rs. 25,000/- was given to him in presence of the Court and another amount of Rs. 5,000/- was to be paid on next hearing and the case was adjourned to 20th May, 2002 on which date, the presiding officer was on leave and the matter was fixed on 3rd June, 2002. On 3.6.2002 also presiding officer did not hold the Court and the case was adjourned to 3rd July, 2002. On 3rd July, 2002, the Court was informed by counsel for the appellant that cheque of Rs. 25,000/- given as a compromise had bounced and the respondent/accused had not appeared before the Court on that date. The Court directed the issuance of NBW against the accused and forfeited the bail bond and the matter was fixed on 20th August, 2002. On 20th August, 2002, the appellant could not come to the Court as he had gone to Indore and an application for exemption was prepared for moving. The junior counsel after attending the case in Tis Hazari got stuck due to a rally and could not reach in time. He reached the Court only at 12.20 in the afternoon when the case had already been dismissed.
2. Notice of the appeal was served upon the respondent after a great effort and Mr. Pawan Madan, Advocate put appearance on 25th May, 2006. Thereafter, he started seeking adjournments on one or the other ground. On 15th February, 2007, Mr. Akshay Malik, Advocate appeared for the respondent and this Court was informed that the respondent is ready and willing to pay the sum of Rs. 35,000/- to the appellant which was acceptable to the appellant.
3. Counsel for the respondent stated that respondent would bring a bank draft of this amount on next hearing. The matter was fixed on 22nd March, 2007 and respondent was directed to appear in person. On 22nd March, 2007, respondent did not appear neither a draft of Rs. 35,000/- was brought and paid to the appellant. Ms. Pooja Chaturvedi, Advocate appeared for the respondent. She was asked to give the address of the respondent. Further efforts to call the respondent to the Court failed since the respondent seems to have changed the address.
4. It is apparent that the respondent has been playing fraud even on the Court. Before the Trial Court, the respondent showed his willingness to enter into the compromise and issued a cheque which got bounced. Again before this Court, the respondent sought time for bringing draft of Rs. 35,000/- and again disappeared.
5. As far as merit is concerned, I find that the appellant has been diligently pursuing the complaint. On 20th August, 2002 appellant's counsel could not appear in time and the compliant was dismissed before lunch. This Court had in earlier judgments given observation that normally the complaint should not be dismissed before the lunch as there may be genuine reasons preventing complainant from appearing in the Court.
6. In the present case, I consider the reasons given by the appellant for non-appearance are genuine and I, therefore, allow this appeal. The order of the learned MM is set aside and the complaint is restored to its original number.
7. The complainant/appellant to appear before the concerned Court on 7th February, 2008. The Court of MM shall take steps to enforce the appearance of the accused.
