Escorts Ltd. vs Rama Mukherjee
2010 Latest Caselaw 5072 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Crl.A. No.1308/2010

                                                 Decided on 08.11.2010

IN THE MATTER OF :
ESCORTS LTD.                                             ..... Appellant
                         Through: Ms. Shweta Singh, Advocate

                   versus


RAMA MUKHERJEE                                       ..... Respondent
                         Through: Mr. A.K.De, Advocate


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?

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


HIMA KOHLI, J. (Oral)

1. The present appeal is filed by the appellant under Section 378

read with Section 482 Cr.P.C. praying inter alia for setting aside the order

dated 29.1.2010 passed by the learned MM, Karkardooma Court dismissing

for non-prosecution, the Criminal Complaint No.1459/2006 filed by the

appellant/complainant against the respondent/accused under Section 138 of

the Negotiable Instruments Act (for short `the Act').

2. The submission of the counsel for the appellant is that the

appellant/complainant filed a Complaint under Section 138 of the Act against

the respondent/accused, alleging dishonour of a cheque dated 25.2.2004,

for a sum of `15,00,000/- issued by the respondent/accused in favour of the

appellant/complainant. As per the copy of the order sheet placed on the

record, vide order dated 26.6.2004, the learned Metropolitan Magistrate

summoned the respondent/accused for 28.8.2004. However, despite orders

passed thereafter by the learned Metropolitan Magistrate on different dates,

directing issuance of process for summoning the respondent/accused,

process fee was not filed by the appellant/complainant. Vide order dated

24.4.2009, costs of `100/- were imposed on the appellant/complainant while

directing process to be issued to the respondent/accused, in terms of the

earlier orders, returnable for 17.9.2009. On 17.9.2009, the summons sent

to the respondent/accused were received back unserved, hence fresh service

was directed for 2.12.2009. On 2.12.2009, as steps were not taken by the

appellant/complainant to serve the respondent/accused, further opportunity

was granted to the appellant/complainant to serve the respondent/accused,

returnable on 29.1.2010, subject to payment of additional costs of `500/-.

On 29.1.2010, the learned Metropolitan Magistrate noted that the

appellant/complainant had neither deposited the costs with the Legal Aid,

nor taken any steps to serve the respondent/accused. As a result, the

complaint was dismissed for non-prosecution.

3. Counsel for the appellant/complainant states at the outset, that

the costs imposed vide order dated 2.12.2009 were deposited in the Legal

Aid after passing of the impugned order dated 29.1.2010. She states that

steps could not be taken by the appellant/complainant to serve the

respondent/accused after 17.9.2009, for the reason that the Authorized

Representative of the appellant/complainant left its services in November

2009. Another employee was engaged in his place and he was appointed as

Authorized Representative of the appellant on 4.1.2010 and thereafter

power of attorney was executed in his favour appointing him as the

Authorized Representative of the appellant/complainant, to appear on its

behalf in the present complaint.

4. It is submitted that immediately after the new Authorized

Representative joined the Company, he dispatched an email dated

15.1.2010 to the counsel on the record, requesting him to give the status of

the present case and two other cases. She draws the attention of this Court

to the emails exchanged between the Authorized Representative of the

appellant/complainant and the previous counsel, enclosed with the petition

as Annexure-3(colly.). It is further stated that after exchange of emails with

the counsel on the subject, the Authorized Representative found that the

status of the case of the appellant/complainant was not available in the

office of the earlier counsel as the respondent/accused was described in the

correspondence by the name of the firm, i.e., M/s Girinder Sunander &

Company, and not by the name of the respondent/accused. In this regard,

she refers to the email dated 6.2.2010 issued by the Authorized

Representative of the appellant/complainant to the erstwhile counsel. It is

stated that immediately after receiving a clarification from the previous

counsel, a certified copy of the complaint and the impugned order was

applied for on 16.2.2010, the certified copy was ready on 25.2.2010 and

was collected by the appellant/complainant on 5.3.2010. Thereafter, the

present petition was filed on 22.3.2010, explaining the reasons for non-filing

of the process fee for effecting service on the respondent/accused. Counsel

for the appellant therefore seeks setting aside of the dismissal order dated

29.1.2010 and restoration of the complaint to its original position.

5. This Court has heard the counsel for the appellant and perused

the documents placed on the record. A perusal of the order sheet in the

present case, shows that the appellant/complainant has been rather

lackadaisical in pursuing its complaint. Even prior to 17.9.2009, there have

been occasions when process fee was not filed by the appellant, resulting in

delaying the proceedings. Nominal costs were also imposed on the

appellant/complainant on two occasions vide orders dated 24.4.2009 and

2.12.2009.

6. Having regard to the explanation offered by the counsel for the

appellant, for non-filing of process fee and for non-deposit of costs, in terms

of the order dated 2.12.2009, this Court is of the opinion that just and

sufficient cause has been shown by the appellant/complainant for setting

aside the order dated 29.1.2010, by which the complaint was dismissed for

non-prosecution, but subject to costs.

7. Accordingly, the present petition is allowed and the order dated

29.1.2010 is set aside, subject to payment of costs of `15,000/- to be

deposited by the appellant, with the Delhi High Court Legal Services

Committee within two weeks. Proof of deposit of costs shall be produced

before the learned MM on the next date of hearing.

8. List before the MM on 20.12.2010 at 2.30PM for appropriate

orders. As the respondent/accused is duly represented through counsel in

the present proceedings, she is directed to appear before the learned MM on

the date of hearing fixed as above.

The registry is directed to forward a copy of this order forthwith

to the concerned MM for information.

                                                           (HIMA KOHLI)
NOVEMBER 8, 2010                                              JUDGE
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