G.E. Capital Transportation ... vs State And Another
2009 Latest Caselaw 1581 Del

                                        UNREPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   DATE OF DECISION: April 22, 2009

+                        CRL.L.P. 279/2008



      G.E. CAPITAL TRANSPORTATION FINANCIAL
      SERVICES LTD.                             ..... Petitioner
                     Through: Mr. Shishir Mathur, Advocate.

                     versus

      STATE & ANR.                                       ..... Respondents
                              Through: Mr. Manoj Ohri, APP for State/R-1.
                                       Mr. Om Prakash, Advocate for R-2.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?
3.    Whether judgment should be reported in Digest?


:     REVA KHETRAPAL, J. (Oral)

Crl. L.P. 279/2008

Leave granted.

The leave petition stands disposed of accordingly.

Crl. A. /2009 (to be numbered)

1. Be registered and numbered.

2. This appeal is directed against the order dated 18.10.2008 passed by the

learned Metropolitan Magistrate, New Delhi acquitting the accused in the

complaint case titled as "M/s. G.E. Capital Transportation Financial

Services Ltd. vs. Shyam Vir Singh" filed under Section 138 of the Negotiable

Instruments Act.

3. The facts relevant for the disposal of the present appeal are that the

respondent No.2 had approached the appellant Company for grant of loan for

the purchase of a vehicle, consequent to which a loan agreement was executed

between the appellant Company and the respondent No.2. Subsequently, in

discharge of the outstanding amount, the respondent No.2 issued two cheques

bearing No.78794 dated 20.09.2007 for an amount of Rs.14,850/- and another

Cheque No.78795 dated 20.10.2007 for an amount of Rs.14,850/- both drawn

on the Oriental Bank of Commerce, Ghaziabad. The aforesaid cheques were

dishonoured on presentation, resulting in the appellant Company filing a

complaint under Section 138 of the Negotiable Instruments Act. On

19.04.2008, the said complaint was received in the Court and the same was

adjourned to 22.04.2008 for consideration. By an order dated 22.04.2008, the

learned Metropolitan Magistrate issued summons to the accused and thereafter

listed the matter for 06.06.2008. On the said date, i.e. on 06.06.2008, the

respondent No.2 entered appearance and was admitted to bail. Notice under

Section 251 Cr.P.C. for the offence punishable under Section 138 of the N.I.

Act was framed against the respondent No.2, to which the respondent No.2

pleaded not guilty and claimed trial. Pertinently, however, the respondent

No.2 at the time of entering his plea of 'Not Guilty' stated that he had issued

the aforesaid cheques but the same could not be cleared on account of financial

difficulty and as he was ill during relevant period, but he had made payments

during the aforesaid period in four instalments of Rs.50,000/- each, and

altogether he had made a payment of eight instalments, and only three

instalments were due when the vehicle was re-possessed by the complainant on

12.01.2008. He did not make the said payment subsequently as the

complainant had seized/re-possessed his vehicle. He had received the notice,

but non-payment was on account of the aforesaid re-possession.

4. After framing of the aforesaid notice, the case was listed on 22 nd July,

2008 and thereafter adjourned to 21st August, 2008 for evidence. On 21st

August, 2008, an application seeking exemption of the authorised

representative of the appellant Company was filed before the learned

Metropolitan Magistrate, which was allowed, and thereafter the matter was

adjourned to 18.10.2008 for evidence. On the said date, i.e. on 18.10.2008, an

application for exemption was filed on behalf of the authorised representative

of the appellant Company which resulted in the passing of the impugned order.

The said order dated 18.10.2008 reads as follows:-

"CC No.1116/08 and 1108/08 18.10.2008

Present: Counsel for the Complainant.

Accused on bail.

Case is at the stage of CE.

AR is not present. Neither affidavit has been filed nor copy of the same has been given to the opposite counsel for the accused.

Pass over is sought for ensuring appearance of the AR of the Complainant.

Put up at 11.30 a.m. Sd/-

MM/New Delhi.

          11.30 a.m.
          Present:       None for the Complainant.
                         Accused on bail.
                         Put up at 12.30 p.m.

Counsel for complainant appears and states that AR is unable to turn up. An exemption application filed stating that he is out of Station for official work.

Ld. Counsel for complainant stated that he would be adopting the same affidavit which was filed at the stage of pre-summoning evidence. This is another plea for taking time. It is pertinent to mention that despite having several opportunities this submission was never made earlier. No ground is made out for extending any further opportunity to lead evidence. CE stands closed.

In view of there being no incriminating evidence against the accused there is nothing to be put to him u/s. 313 Cr.P.C. Accused is acquitted of the offence punishable u/s. 138 N.I. Act.

Bail bonds cancelled. Surety discharged. Endorsement on documents, if any be cancelled.

File be consigned to Record Room.

Sd/-

(Vipin Kumar Rai) MM/New Delhi."

5. The learned counsel for the appellant Mr. Mohit Mathur, Advocate

assails the aforesaid order on the ground that the learned Metropolitan

Magistrate instead of deciding the exemption application filed on behalf of the

authorised representative of the complainant stating that he was out of station

for official work, proceeded to acquit the accused on the ground that there was

no incriminating evidence against the accused. This, despite the counsel for

the complainant stating that he would be adopting the same affidavit which

was filed at the stage of pre-summoning evidence. The learned counsel for the

respondent No.2, on the other hand, submits that this was not the first time

when the authorised representative of the complainant was not present, and as

such the order passed by the learned Metropolitan Magistrate acquitting the

accused was perfectly justified.

6. After hearing the counsel for the parties and going through the orders

passed by the learned trial court, I am of the opinion that in view of the

provisions of Section 256 of the Code of Criminal Procedure, the learned

Metropolitan Magistrate instead of acquitting the accused ought to have

exercised the other options available to him under the aforesaid Section. For

the sake of ready reference, the said Section is reproduced hereunder:-

"256. Non-appearance or death of complainant.-(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

7. The proviso to Section 256(1) clearly provides that where the

complainant is represented by a pleader/counsel or where the Magistrate is of

the opinion that the personal attendance of the complainant is not necessary,

the Magistrate may dispense with the attendance of the complainant and

proceed with the case. In the present case, as is evident from the impugned

order dated 18.10.2008, the counsel for the complainant was present before the

learned Magistrate and had moved an exemption application stating that the

authorised representative of the complainant Company was out of station for

official work. In the circumstances, in my view, the learned Metropolitan

Magistrate keeping in view the provisions of Section 256(1) and the

admissions made by the accused at the time of framing of notice under Section

251 that he had issued the cheques in question and had received legal notice

for their dishonour, should have disposed of the application for exemption

from personal appearance of the authorised representative of the complainant

Company and afforded another opportunity to the complainant Company to

substantiate its case, instead of acquitting the accused for want of incriminating

evidence. The accused, needless to state, could have been compensated by

imposition of suitable costs.

8. In view of the aforesaid, the impugned order dated 18.10.2008 passed

by the learned Metropolitan Magistrate is set aside and the complaint is

restored to its original number. Parties shall appear before the concerned Court

on 9th July, 2009. The counsel for the respondent No.2 shall, however, be

compensated by payment of Rs.10,000/- as costs.

9. The appeal stands disposed of accordingly.

REVA KHETRAPAL, J.

APRIL 22, 2009 km