Escorts Ltd. vs Prakash Chand Patidar
2014 Latest Caselaw 2606 Del

$-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      DECIDED ON : 21st MAY, 2014

+                        CRL.A.No.1265/2013

         ESCORTS LTD.                                    ..... Appellant

                         Through :    Mr.R.M.Bagai, Advocate with
                                      Ms.Damini Khaira, Advocate.


                         versus

         PRAKASH CHAND PATIDAR                           ..... Respondent

                         Through :    Mr.Debashis Rout, Proxy counsel.


         CORAM:
         HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. The appellant has filed the present appeal to challenge the

legality and correctness of order dated 28.06.2011 of learned Metropolitan

Magistrate whereby the complaint case under Section 138 Negotiable

Instruments Act filed by the appellant was dismissed for non-prosecution.

The appeal was admitted and notice was given to the respondent who put

appearance through counsel. However, no response to the appeal was

filed.

2. Perusal of the file reveals that complaint case under Section

138 Negotiable Instruments Act was filed against the respondent before

the learned Metropolitan Magistrate. The complainant tendered his

evidence by way of affidavit and cognizance was taken on 21.02.2006.

The respondent failed to put appearance despite issuance of process

number of times. Finally, non-bailable warrants were ordered to be issued

to procure respondent's presence which remained unexecuted. The

proceedings under Section 138 Negotiable Instruments Act were earlier

pending before Karkardooma Courts. However, vide order dated

18.05.2010 the parties were directed to appear before the concerned Court

at Dwarka. Pursuant to Court notice issued to the appellant, Sh.Satish

Kashyap, Advocate appeared on 07.06.2011 and sought some time to get

instructions from the complainant to withdraw the case. The matter was

listed for 28.06.2011. On that day, none appeared on behalf of the

complainant and the case was dismissed for non-prosecution. Aggrieved

by the said orders, the appeal has been filed. The complainant has filed an

affidavit of Keshav Sharma, Authorized Representative of the

complainant to show the circumstances because of which he could not put

appearance before the Trial Court on 28.06.2011. There are no reasons to

disbelieve the contents of the affidavit. The respondent did not file any

counter affidavit. It is stated that the appellant is interested to pursue the

case. Perusal of the file reveals that the complainant was diligent in

pursuing the complaint case from the very inception and on that particular

date, the complainant could not appear. No effective proceedings were to

be conducted on that day and the presence of the complainant as such was

not dispensable. The respondent had not put appearance before the Trial

Court despite issuance of non-bailable warrants.

3. In the interest of justice and to enable the appellant to get the

case decided on merits, order dated 28.06.2011 is set aside and the

complaint case is restored in its original number. The parties are directed

to appear before the Trial Court on 7 th July, 2014. The Trial Court shall

proceed with the trial as per law. Trial Court record be sent back forthwith

with the copy of the order.

(S.P.GARG) JUDGE

MAY 21, 2014 / tr