Delhi High Court
Lodhi Property Company Ltd vs Rajbir Singh & Anr on 24 January, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th January, 2013
+ CRL. L.P. 318/2012
LODHI PROPERTY COMPANY LTD ..... Petitioner
Through: Mr. Chinmoy Pradip Sharma, Adv. with
Mr. Sayan Ray, Adv.
versus
RAJBIR SINGH & ANR ..... Respondent
Through: Mr. Abhay Kumar Pandey, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CRL.L.P. 318/2012
1. Leave granted.
2. Registry is directed to register the Petition as an Appeal.
CRL. A. _______/2013
3. The Appellant invokes inherent power of this Court under Section 482 of
the Code of Criminal Procedure (the Code) for setting aside the order
dated 30.03.2012 whereby a complaint under Section 138 of the
Negotiable Instruments Act, 1881 (the N.I.Act) was dismissed by the
Metropolitan Magistrate ('MM') for non appearance of the Complainant,
that is, the Petitioner herein and the accused, that is, the Respondent was
acquitted.
4. As per the averments made in the Appeal, the Appellant have paid a sum
of `2.70 lacs to the Respondent for supply of certain goods. The
Respondent failed to supply the goods and, therefore, issued a cheque
No.199005 dated 21.04.2009 towards the reimbursement of the amount.
When the said cheque was presented by the Petitioner it was dishonoured
on account of 'insufficient funds'. A legal notice dated 30.04.2009 was
served and on account of non-payment of the amount within the statutory
period, a complaint under Section 138 of the N.I.Act was filed. A perusal
of the Trial Court record reveals that Respondent was not appearing in the
Court. On 08.02.2012 none appeared on behalf of the Complainant, that
is, the Appellant, the Respondent was also not present. The learned 'MM'
entertained certain doubts regarding genuineness of the medical
certificate produced for exemption of the Respondent and directed the
Respondent to produce the record of Talwar Medical Centre, which
issued the medical certificate.
5. On 16.03.2012 none was present on behalf of the Appellant and the case
was adjourned for 30.03.2012. On this date again none appeared on
behalf of the Complainant/Appellant and the complaint was dismissed for
non prosecution and the accused, that is, Respondent was acquitted. It is
urged by the learned counsel for the Appellant that the counsel for the
Appellant did not appear in the Court. No information was given by him
to the Appellant that he would not be able to appear. The Appellant was
not aware of the dates and thus, this lapse had occurred on the part of the
Complainant.
6. On the other hand, learned counsel for the Respondent argues that the
Appellant cannot be given the luxury to appear at his own will and,
therefore, the learned 'MM' was fully justified in dismissing the
complaint for non appearance of the Complainant and acquitting the
Respondent.
7. Under Section 256 of the Code, the Magistrate has discretion to dismiss
the complaint if on any date fixed for hearing the Complainant fails to
appear in the Court. At the same time, if the Magistrate finds that there is
some reason or that the presence of the Complainant was not required, he
in his discretion can adjourn the complaint.
8. A perusal of the order dated 16.03.2012, by which the case was listed for
30.03.2012, on which date it came to be dismissed in default, shows it
was not listed for any particular purpose. Rather, the case was fixed only
for appearance of the complainant.
9. In Associated Cement Company Limited v. Keshvanand (1998) 1 SCC
687 the Supreme Court observed that the provisions of Section 247 of the
Code of Criminal Procedure, 1898 (Section 256 in the New Code) have
been incorporated to provide some deterrence against dilatory tactics on
the part of a Complainant who sets the law in motion through his
complaint. An accused who per force has to attend the Court on all
posting days can be put to much harassment by the Complainant by his
absence.
10. In the instant case, according to the Appellant, absence was not
intentional but on account of the fact that counsel for the Complainant
could not appear and he was not aware of the date. Admittedly, the
Petitioner would not have intentionally allowed the complaint to be
dismissed in default as his valuable right of proceeding in the complaint
under Section 138 of the N.I.Act, wherein a cheque for `2.70 lacs has
been dishonoured, would have been foreclosed.
11. In the facts and circumstances of the case, I am of the view that the
complaint should be ordered to be restored, subject to certain terms.
12. Accordingly, the order dated 30.03.2012 is set aside, subject to payment
of costs of `4,000/- to be deposited with Delhi High Court Legal Services
Committee within two weeks and the complaint is ordered to be restored
to its original number.
13. The parties are directed to appear before the learned M.M. on 11.03.2013.
G.P. MITTAL, J.
JANUARY 24, 2013
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