Avya Global Connect Ltd. vs Trustron Devices P. Ltd. & Anr
2012 Latest Caselaw 2841 Del

*              HIGH COURT OF DELHI AT NEW DELHI
+        Crl.M.A.13867/2009 & CRL. L.P. No. 245/2009
                           Date of Decision : 30.04.2012
AVYA GLOBAL CONNECT LTD.               ...... Petitioner
                      Through: Mr. D. Bhattacharya &
                                Mr. Piyush Sharma, Advs.
                       Versus

TRUSTRON DEVICES P. LTD. & ANR. ......                 Respondents
                       Through: None
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is a leave to appeal filed by the petitioner against the

order dated 20.9.2008 passed by the Addl. Chief Metropolitan

Magistrate, dismissing the complaint of the petitioner under

Sections 138 and 141 of the Negotiable Instruments Act,

1881 (NI Act) in default.

2. Briefly stated, the facts of the case are that the petitioner had

filed a complaint under Sections 138 and 141 of the NI Act

against the respondents on the ground that the respondent

no.2 had issued two cheques for a sum of Rs. 13,06,758/-

and 16,52,956/-, totaling Rs. 29,59,714/- on account of the

discharge of the liability. It is alleged that the cheques, on

presentation, were returned unpaid with the Returning Memo

dated 9.8.2007, stating "exceeds arrangement". It is alleged

that a Demand Notice, dated 8.8.2007, was sent to the

respondents, requiring them to make the payment on account

of dishonour of cheques and since this was not done, a

complaint under Sections 138 and 141 of the NI Act was filed

on 20.9.2007.

3. The petitioner adduced pre-summoning evidence and the

learned Magistrate passed an order of summoning against the

respondents. The petitioner did not appear on 20.9.2008

despite the case having been called three times and

ultimately it was dismissed in default at 2:15 P.M.

4. Feeling aggrieved by the said dismissal order, the petitioner

has filed the present leave to appeal. The leave to appeal is

accompanied by an application seeking condonation of 350

days in filing the leave to appeal. In the application seeking

condonation of delay, it has been mentioned that the Clerk of

the appellant had noted down the date wrongly as 20.9.2009,

because of which the matter could not be attended on

20.9.2008 when it was actually listed and thus it was

dismissed in default. It is stated that the absence of the

petitioner was beyond his control. The application is supported

by an affidavit of Subhashis Sur, the Regional Director of the

petitioner company.

5. I have heard the learned counsel for the petitioner and have

perused the record.

6. The matter has been pending in Court since 30.11.2009,

without any fruitful progress. The application for seeking

condonation of delay, in my opinion, does not constitute

„sufficient cause‟ on account of two reasons. Firstly, it is

totally unbelievable that when the case was being fixed for

service of the respondents by the learned Trial Court, such a

long date of 14 months would have been given by the learned

Trial Court. As a matter of fact, in the District Courts, the

period for service and miscellaneous purposes does not travel

beyond 6 to 9 months on an average. This point gets verified

by the fact that that it has been alleged by the petitioner that

the date was wrongly noted by his Clerk but the name of the

Clerk, the date on which he learnt about the wrong noting of

the date and his affidavit in support of the averments of the

application has not been filed.

7. Secondly, even the application seeking condonation of delay

has been drafted so casually that the words „sufficient cause‟

have also not been used in the application. It seems that the

appellant had probably initiated some civil suit and was not

keen to prosecute the respondents on the criminal side.

Otherwise, if the appellant would have been vigilant enough,

then it would have certainly followed-up the case properly, as

the amount of cheque was quite heavy.

8. The conduct of the petitioner has been grossly negligent and

indolent which cannot, by any stretch of imagination, be said

to be constituting „sufficient cause‟. As a matter of fact,

condoning the delay would amount to putting premium on the

negligent behavior of the petitioner. The Delhi Courts are

already clogged with more than 7 lacs cases under Section

138 of the NI Act. Substantial number of these cases are not

properly followed by the parties, thus leading to the

unnecessary burden on the Courts and the wastage of time.

This would be evident from the present leave to appeal also

that has been filed in the year 2009. It is pending for the last

three years only for the disposal of the application for

condonation of delay.

9. I, accordingly, feel that this is not a fit case where the delay

of 350 days, which is almost a year, deserves to be condoned.

Accordingly, the application seeking condonation of delay is

dismissed.

10. Since the application for condonation of delay itself has been

dismissed, therefore, the leave to appeal also stands

dismissed.

V.K. SHALI, J.

APRIL 30, 2012 tp