M/S Cordant India P.Ltd. vs Rakesh Seth
2013 Latest Caselaw 4599 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of Decision: 04th October, 2013
+      CRL.L.P. 438/2012

       M/S CORDANT INDIA P.LTD.                 ..... Petitioner
                    Through: Mr. Avinash Lakhanpal, Advocate

                           versus

       RAKESH SETH                                      ..... Respondent
                           Through: Mr. Vikram Seth, Advocate

       CORAM:
       HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

CRL.M.A. No.14368/2012 (exemption) Exemption as prayed is allowed, subject to just exceptions. Application stands disposed of.

CRL.L.P. No.438/2012 Leave granted.

Registry is directed to register the petition as an appeal. CRL.A._____/2013 (Registry to number it) & CRL.M.A. No.14367/2012 (condonation of delay)

1. The case of the appellant/complainant is that the respondent/accused had approached the appellant/complainant for a short term loan of amount of `15 lakhs in February, 2009. The aforesaid loan amount was granted by issuing a demand draft No.962053 dated 25.3.2009 in favour of the respondent. The respondent had agreed to repay the said amount along with

interest and as such had issued a cheque No.344365 dated 2.9.2010 for an amount of `20,40,000/- with the assurance that the said cheque would be encashed on its presentation. However, on presentation, the said cheque was dishonoured and returned to the appellant/complainant company. Thereafter, complainant company issued a legal notice and called upon respondent/accused to pay the amount against the dishonoured cheque. However, the respondent did not reply to the said notice nor made the payment. Ultimately, appellant/complainant company had filed the aforesaid criminal complaint against the respondent/accused under Section 138 and 142 of Negotiable Instruments Act through its authorized representative. The learned MM vide order dated 29.10.2010 had issued summons to the respondent/accused for appearance. The respondent/accused had appeared on 6.1.2011 and on furnishing the surety the learned MM granted bail to the respondent and the case was adjourned to 18.2.2011 for settlement of proceedings/framing of notice/statement of defence. It is alleged that the appellant/complainant company have been regularly appearing before the learned MM. On 7.5.2011, the authorized representative appeared before the learned MM but the learned Judge was on leave and the matter was adjourned to 7.7.2011. Even on the said date, the learned MM was on leave and the matter was heard by the link MM and the case was adjourned for 29.10.2011 for framing of notice. It is stated that on 29.10.2011 also the learned Presiding Officer was on leave and the matter was heard by the link MM. The counsel for respondent/accused had made the statement before the learned MM that they are exploring the possibility of amicable settlement and the matter was adjourned to 6.1.2012. It is stated on behalf of the appellant/company that its authorized representative used to

appear before the ld.M.M. However, the said representative had left the appellant/company to join some other company at Rajasthan. On inquiry being made from the said representative, it was revealed that the case had been adjourned to 4.5.2012 for amicable settlement. On the aforesaid date when the other authorized representative of the appellant/company appeared, the matter was not there in the cause list and on inquiry it was revealed that the case was already dismissed for non-appearance on 6.1.2012. The appellant/complainant company vide its letter dated 16.5.2012 expressed its anguish over the negligence of the previous representative. It is stated that thereafter the appellant/company challenged the order dated 6.1.2012 by filing a revision petition before the learned ASJ, Delhi. However, the same was dismissed as withdrawn on 5.6.2012 as the revision was not maintainable. It is stated that again an appeal was filed before the learned ASJ and the same was also dismissed as withdrawn on 20.7.2011 with liberty to file the same before the appropriate forum. Thereafter, a new counsel was engaged and after taking proper advice the present appeal was filed on 13.8.2012. It is stated that the non-appearance was due to the reasons stated above and the delay has also occurred due to approaching the wrong forum i.e. first by filing revision petition before the learned ASJ and thereafter challenging the impugned order before the learned ASJ by filing an appeal.

2. It is submitted that the complaint was dismissed for non-appearance on 6.1.2012 due to the bona fide mistake on the part of the appellant/company as its authorized representative who had left the services of the respondent/company had wrongly given the next date of hearing as 4.5.2012 and thereafter due to wrong advice the appellant/company

approached the wrong forum and after the proper advice the appeal has been filed before this court on 13.8.2012. It is prayed that the impugned order be set aside and the complaint be restored to its original number and position.

3. The learned counsel appearing for the respondent/accused has submitted that the complainant has been negligent in appearance before the court on number of dates and as such the learned MM was fully justified in dismissing the complaint for non-appearance of appellant/complainant and acquitting the respondent.

4. Section 256 of the Code of Criminal Procedure provides that if upon 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 proper to adjourn the hearing of the case to some other day.

5. The learned counsel for appellant has taken through the order sheet of the case which has been annexed with this petition. The order sheet shows that the complaint was filed on 18.10.2010. The summoning order was passed on 29.10.2011. On 6.1.2011, the respondent/accused appeared and furnished bail bond and matter was adjourned to 18.2.2011. On the said date, parties submitted that no settlement has been made and the matter was adjourned to 7.5.2011. On 7.5.2011, the appellant/complainant was present. However, the Presiding Officer was on leave and the matter was taken up by link MM and was adjourned to 7.7.2011. Thereafter, it has been adjourned to 29.10.2011. Even on the said date, the learned MM was on leave and the link MM had taken up the matter and it was stated by the parties that they were exploring the possibility of settlement and the matter was adjourned to

6.1.2012. On the said date, there is no appearance on behalf of the complainant/company and the complaint was dismissed for non-appearance and the respondent/accused was acquitted. The stand of the appellant/complainant is that the authorized representative of the appellant/company who was representing him in the present case had left the appellant/company and joined some other company at Rajasthan and informed the next date as 4.5.2012. It is stated that due to that reason, there is no appearance on behalf of the appellant/company on 6.1.2012. Thereafter, the delay has been explained by the appellant/company as it is stated that first a revision petition was filed before the learned ASJ on 25.5.2012 which was dismissed as withdrawn as the proper remedy was to challenge the impugned order by filing the appeal. The relevant order is placed on record.

6. Thereafter, it is stated that the appeal was filed before the ld.ASJ, Delhi which was also dismissed as withdrawn. The relevant order is reproduced as under:-

"Crl. Appeal No.32/12 20/7/2012 Present: Sh Manish Kumar, Advocate for the appellant.

There is only one respondent. Notice of the appeal has not been issued as yet to the respondent. Ld. Counsel for the appellant submits that he be allowed to withdraw this appeal with liberty to file the same before appropriate forum.

In view of his statement, the appeal is dismissed as withdrawn with liberty to the appellant to file the same before appropriate forum.

File be consigned to the record room. Copy of the proceedings be given to ld. Counsel for the appellant (free of cost) as prayed for."

7. In view of above reasoning, no negligence is seen on the part of the appellant/company. It cannot be said that the absence was intentional but it was on account of the fact of leaving of the job by its representative and giving wrong date to the appellant. The delay has also been explained in a proper manner as earlier the appellant had approached the wrong forum twice as has been discussed above.

8. In the facts and circumstances of the case, it cannot be said that the appellant has intentionally allowed the complaint to be dismissed in default as the same will have the effect of losing its valuable right of proceedings in a complaint under Section 138 of Negotiable Instruments Act wherein a cheque of `20 lakhs has been dishonoured.

9. In view of above discussion, the delay in filing the appeal is condoned and the impugned order is set aside and the complaint is restored to its original number and position, subject to payment of cost of `7,500/- to be deposited with Delhi High Court Legal Services Committee within two weeks. The parties shall appear before the concerned learned MM on 11.11.2013.

The appeal as well as application for condonation of delay stand disposed of accordingly.

VEENA BIRBAL, J OCTOBER 04, 2013//kks