Sudhir Kumar Jain vs Dheeraj Lamba
2014 Latest Caselaw 4412 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of decision: 12th September, 2014

+    CRL.A. 108/2011

     SUDHIR KUMAR JAIN                                        ..... Appellant
                  Through:             Appellant in person.

                         Versus


     DHEERAJ LAMBA                                        ..... Respondent
                 Through:              Mr. Basant Kumar Singh, Advocate
                                       along with respondent in person.
      %
      CORAM:
      HON'BLE MS. JUSTICE SUNITA GUPTA

     : SUNITA GUPTA, J. (ORAL)

1. This is an appeal under Section 378 Cr.P.C. filed by the appellant

challenging the order dated 14th February, 2007 passed by the learned

Metropolitan Magistrate in CC No.99/2001 titled as Sudhir Kumar Jain

vs. Dheeraj Lamba whereby the complaint was dismissed in default for

non-appearance.

2. It is the case of the appellant that a complaint under Section 138 of

Negotiable Instruments Act was filed by him against the respondent

which was pending before learned Metropolitan Magistrate. He was

regular and diligently pursuing the matter in the Court. On 7th April,

2006, the case was transferred from Tis Hazari Courts to Rohini Court

and after coming to know regarding the transfer of the case, he went to

Rohini Court but by that time, the matter was adjourned for 14th February,

2007 and the presence of the appellant could not be recorded. On 14th

February, 2007, the appellant could not appear before the Court at the

time when the case was called because he was attending the Court of Sh.

Lokesh Kumar Sharma, MM, and Sh. M.K.Gupta, ADJ at Tis Hazari

Courts where two of his cases were listed on that date. His counsel had

assured him to attend this matter. When the appellant reached the Court

at 12:05 pm, he came to know that the complaint has been dismissed at

11:35 pm for non-appearance. A revision petition was filed before the

District Judge which was withdrawn being not maintainable. It was

submitted that non-appearance of the appellant was neither intentional nor

deliberate but due to the aforesaid reasons. As such, the impugned order

be set aside and the criminal complaint be restored to its original number.

3. Leave to appeal was granted and notice was issued to the

respondent.

4. I have heard the appellant in person and Sh. Basant Kumar Singh,

Advocate for the respondent.

5. The appellant has reiterated the averments made in the grounds of

appeal during the course of his submissions. He further submitted that he

should not be made to suffer on account of negligence of his counsel who

failed to attend the Court despite assurance given to him.

6. Learned counsel for the respondent, however, submitted that the

respondent has been harassed by the petitioner, inasmuch as, although the

complaint was filed in the year 2004 it could not reach its logical

conclusion till date. Due to non-appearance of the complainant, the same

was dismissed. He also referred to the conduct of the appellant during the

pendency of the present appeal for showing that even appeal was

dismissed twice due to his non-appearance. As such, it was submitted

that there is no sufficient ground for setting aside the impugned order and

the appeal be dismissed.

7. A perusal of the impugned order goes to show that the complaint

was dismissed in default for non-appearance of the complainant at 11:35

pm (although it must be 11:35 am). In order to show that the appellant

was prevented by sufficient cause from putting in appearance before the

learned Metropolitan Magistrate, the appellant has placed on record

certified copy of the order sheets to show that he had attended the court of

Sh. Lokesh Kumar Sharma, Metropolitan Magistrate, Tis Hizari Courts

and the court of Sh. M.K. Gupta, ADJ, Tis Hazari Courts, Delhi on 14th

February, 2007. It is his case that his counsel had assured him to look

after the matter pending before the Metropolitan Magistrate, however, he

did not appear and when the appellant reached the Court he came to know

that the complaint was dismissed in default at 11:30 am. Under the

circumstances, sufficient cause has been assigned by the appellant for his

non-appearance on 14th February, 2007 when the complaint was

dismissed in default.

8. It is true that even during the pendency of the present appeal the

appellant has not been very vigilant as firstly on 12th March, 2010, due to

his non-appearance, the appeal was dismissed for non-prosecution. He

moved an application for restoration of the appeal which was also

dismissed for non-prosecution on 9th July, 2010. Thereafter he moved

another application for restoration which was allowed subject to cost.

However, for delay caused, the respondent can be compensated in terms

of cost.

9. Keeping in view the fact that the complaint is pending since 2004

without any logical conclusion, the impugned order is set aside subject to

Rs.15,000/- (Rupees Fifteen Thousand) as costs to be paid to the

respondent. The appeal is allowed and the complaint is ordered to be

restored to its original number and status.

10. Parties are directed to appear before the concerned Chief

Metropolitan Magistrate on 13th October, 2014, who may either keep the

complaint himself or assign it to the appropriate Court. Thereafter, the

complaint be disposed of as expeditiously as possible preferably within

four (4) months.

Copy of the order along with Trial Court record be sent back

immediately.

(SUNITA GUPTA) JUDGE SEPTEMBER 12, 2014 rs