Pratima Goel & Anr. vs Metropolitan Magistrate & Anr.
2009 Latest Caselaw 1612 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Criminal Appeal No. 131/2007

%                              Date of reserve : 21.04.2009
                               Date of decision: 23.04.2009

       Pratima Goel and Another        ...Appellants
                       Through: Appellant in person

                                 Versus

       Metropolitan Magistrate & Anr.   ...Respondents
                      Through: Mr.Harish Kumar, Advocate


CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers     Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?        Yes

3.     Whether the judgment should be            Yes
       reported in the Digest?

MOOL CHAND GARG, J.

1. This appeal is arising out of the order passed by the Metropolitan

Magistrate who has dismissed the complaint filed by the petitioner

under Section 138 Negotiable Instrument Act. Alleging that despite

issuance of three cheques bearing nos. 591498 dated 23.4.2000,

591499 dated 23.5.2000 and cheque no. 591500 dated 23.6.2000 for

Rs. 40,000, Rs.50,000/- and Rs. 38,287/- respectively by respondent

no. 2, for the purpose of repaying the amount of deposit made by the

complainant to the respondent for three years and which amount was

repayable on 23.4.2000. He failed to honour the cheques despite

receipt of the statutory notice. Thus the complaint under section 138

N.I.Act was filed, which was dismissed on 25.11.2005 because the

complainant was absent.

2. Since the discharge of respondent no. 2 amounted to his

acquittal the appellant has filed the present appeal. Vide order dated

26.4.2007 leave to file the appeal was allowed. According to the

appellants they could not appear on the date fixed in the matter

because they were not informed by their counsel about the date of

hearing. The appellant no.1 was pregnant and hospitalised, while

appellant no.2 was taking her care and therefore she also could not

appear before the M.M on 25.11.2005. Infact the first appellant also

gave birth to a child on 28.11.2005. Therefore, the reason given by the

appellants for their non-appearance is sufficient.

3. In so far as the respondent is concerned he has taken a defence

that the amount was paid to the complainant in view of the

dishonoured cheques, but no document has been placed on record in

this regard, despite order dated 20.11.2007.

4. Thus the appeal is allowed. The complaint is restored to its

original number. Parties to appear before the trial court on 11th May,

2009. Trial court record, if any, be sent back forthwith.

MOOL CHAND GARG, J.

April 23, 2009