Delhi High Court
M/S.Freight Systems (India) ... vs M/S.Tac Express Pvt.Ltd & Ors. on 25 January, 2016
Author: S. P. Garg
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 25th JANUARY, 2016
+ CRL.A.186/2014
M/S.FREIGHT SYSTEMS (INDIA) PVT.LTD. ..... Appellant
Through : Mr.Arvind K.Singh, Advocate.
versus
M/S.TAC EXPRESS PVT.LTD & ORS. ..... Respondents
Through : None.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Oral)
1. Present appeal has been preferred by the appellant to
challenge the correctness of an order dated 03.09.2010 of learned
Commercial Civil Judge in CC No.4244/1/2009 by which the complaint
case under Section 138 Negotiable Instruments Act filed by him was
dismissed for non-prosecution / non-appearance. Notice was given to the
respondents. On subsequent dates, none appeared on their (respondents)
behalf.
2. I have heard the learned counsel for the appellant and have
examined the Trial Court record. On perusal of the Trial Court record, it
reveals that complaint case under Section 138 Negotiable Instruments Act
was filed by the appellant on 28.05.2007. The respondents were
summoned for the commission of offence under Section 138 Negotiable
Instruments Act. They could not be served and the process issued to them
was received back unexecuted. Subsequently, bailable warrants issued
against them were also received back unexecuted. Finally, when none
appeared on behalf of the appellant on 03.09.2010, the Trial Court
dismissed the complaint case for non-prosecution. Record further reveals
that on previous dates i.e. 14.01.2009, 11.12.2009 and 03.09.2010, none
had appeared on behalf of the complainant. Since the complainant had not
put appearance on various dates, the Trial Court had no alternative but to
dismiss the complaint case for non-appearance. On that score, the
impugned order can't be faulted.
3. It is also relevant to note that on 03.09.2010, no effective
proceedings were to take place in the court. Vide order dated 10.07.2008,
representative of the appellant company had put appearance. Bailable
warrants were ordered to be issued against the respondents for
03.10.2008. In the meanwhile, the case was transferred from the Court of
Sh.Gautam Manan, learned Metropolitan Magistrate to the Court of
Sh.Naresh Kumar Malhotra, Learned Metropolitan Magistrate. It was
adjourned for 14.01.2009 for service. In the meanwhile, the case was
transferred to the Court of Sh.Jagdish Kumar, leaned Commercial Civil
Judge. No notice was ever given to the appellant on transfer of the case.
The case was adjourned for 11.12.2009 and fresh bailable warrants were
issued. On 11.12.2009, the Presiding Officer was on leave. On
03.09.2010, the case was dismissed for non-appearance. Record reveals
that despite issuance of process on various dates, it could not be executed.
None had put appearance on behalf of the respondents before the Trial
Court. The appellant has given cogent reasons supported by the affidavit
in the appeal for absence on these dates. Restoration of the complaint
case in its original number would not cause any prejudice as the
respondents did not put appearance before the Trial Court. They also
remained absent before this Court.
4. In the interest of justice and to enable the appellant to get the
case decided on merits, impugned order dated 03.09.2010 is set aside.
Complaint case is ordered to be restored in its original number. The Trial
Court shall proceed with the case on merits. The appellant shall appear
before the Trial Court on 01.02.2016. The appeal stands disposed of in
the above terms.
5. Trial Court record be sent back forthwith with the copy of the
order.
(S.P.GARG)
JUDGE
JANUARY 25, 2016 / tr
