Delhi High Court
Shri Chand Yadav vs Manoj Kumar & Anr. on 15 September, 2016
$~70
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 15th SEPTEMBER, 2016
+ CRL.A.1658/2013
SHRI CHAND YADAV ..... Appellant
Through : Mr.Amarjeet Sahni, Advocate.
versus
MANOJ KUMAR & ANR. ..... Respondents
Through : Ms.Tina Garg, Advocate for R1 &
R2.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (Oral)
Crl.M.A.13528/2014
Delay in re-filing application for substitution of legal heirs of
deceased appellant is allowed.
Application stands disposed of.
Crl.M.A.13527/2014
This is an application for substitution of the legal heirs of the deceased
appellant.
Application is allowed and disposed of.
Crl.A.1658/2013
1. Present appeal has been preferred by the appellant to challenge
the legality and correctness of an order dated 15.01.2013 of learned
Metropolitan Magistrate by which the complaint case under Section 138
Negotiable Instruments Act filed by him was dismissed and the respondents
were acquitted. The appeal is contested by the respondents.
2. On perusal of the Trial Court record, it reveals that complaint
case under Section 138 Negotiable Instruments Act was filed against the
respondents on 24.06.2010. The respondents put appearance before the
Trial Court. By an order dated 03.06.2011, notice under Section 251 Cr.P.C.
was served upon them, to which they pleaded not guilty and opted to lead
defence evidence. They wished to move an application under Section
145(2) of Negotiable Instruments Act. By an order dated 21.03.2012, the
opportunity to cross-examine the complainant was denied due to
respondents' failure to move any application under Section 145(2)
Negotiable Instruments Act. Recording of 313 Cr.P.C. statement was
dispensed with and the matter was listed for defence evidence for
13.04.2012. On 22.08.2012 case was adjourned for arguments. On
29.09.2012, the complainant was not present. One last and final opportunity
was granted to the complainant to put appearance on 15.01.2013. On that
day, learned Proxy counsel was present on behalf of the complainant. Since
the complainant was not present, the complaint case was dismissed
observing that the complainant was not interested to pursue the complaint.
3. On scanning the order-sheets referred above, it reveals that
presence of the complainant on 15.01.2013 was not necessary for conducting
effective proceedings. On 22.08.2012, the case was adjourned for further
arguments. The appellant has given cogent reasons for his absence on the
date of hearing before the Trial Court. Number of documents have been
placed on record showing that the appellant was suffering from various
ailments and was unable to put appearance in person. It is informed that the
appellant has since expired.
4. The complainant and his representative were pursuing the
complaint case diligently. Only on few dates, the complainant or his
attorney could not put appearance for the reasons detailed in the petition.
No prejudice was caused to the respondents due to the absence of the
complainant or his representative particularly when the proxy counsel had
represented the complainant on the date of dismissal of the complaint case.
Apparently, the impugned order has resulted in miscarriage of justice and
cannot be sustained.
5. In the light of above discussion, the appeal preferred by the
appellant is allowed and the order dated 15.01.2013 is set aside.
6. The parties are directed to appear before the Trial Court on
26.09.2016. The Trial Court shall proceed with the trial as per law.
7. Trial Court record be sent back forthwith with the copy of the
order. Pending applications (if any) also stand disposed of.
(S.P.GARG)
JUDGE
SEPTEMBER 15, 2016 / tr
