Yamaha Motor India Pvt. Ltd. vs Amit Jyoti
2018 Latest Caselaw 1402 Del

16# $
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                          Decided on: 27th February, 2018
+                   CRL.L.P. 434/2016
       YAMAHA MOTOR INDIA PVT. LTD.          ..... Petitioner
                  Represented by: Mr. Rahul Malhotra and
                                  Mr.Arpit Dwivedi, Advocates.
                  versus

       AMIT JYOTI                                          ..... Respondent
                           Represented by:     Mr. Avtar Singh and Mr. Rahul
                                               Sarkar, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

Crl. M.A. No. 12701/2016 (Delay)

1. For the reasons stated in the application and the fact that the petitioner availed the remedy of revision petition against the impugned order, which was not maintainable, delay of 268 days in filing the leave to appeal is condoned.

2. Application is disposed of.

CRL.L.P. 434/2016

1. By this petition the petitioner seeks leave to appeal against the judgment dated 11th September, 2015 whereby the learned Metropolitan Magistrate dismissed the complaint case being CC No. 219/1/11 titled as Yamaha Motor India Private Ltd. vs. Amit Jyoti under Section 138 of the Negotiable Instruments Act, 1881 since for four dates neither the authorized representative of the complainant nor the counsel for the complainant

appeared and acquitted the respondent.

2. Having perused the orders passed by the learned Trial Court, copy of the diary of petitioner's counsel and on hearing learned counsel for the parties, this Court deems it fit to grant leave to appeal.

3. Leave to appeal petition is disposed of.

Crl. Appeal No.            2018 (to be numbered)
1.     Registry to number the appeal.
2.     Admit.

3. Learned counsel for the appellant has placed on record certified copies of the order sheet of the learned trial court. As per the orders passed by the learned Trial Court, appellant filed the above noted complaint which came up for the first time before the learned Metropolitan Magistrate on 27th July, 2017 and on the evidence by way of affidavit of the authorised representative of the complainant being filed on the same day and on hearing arguments learned Metropolitan Magistrate summoned the respondent as an accused. On the next date respondent entered appearance and was granted bail. Both the parties continued to appear except for an occasional abrasion here and there and the trial continued.

4. On 7th January, 2015 both counsel for the complainant with the authorised representative and the accused were present, however, the learned Presiding Officer was on leave when the matter was fixed for 19 th March, 2015. On 19th March, 2015 lawyers were abstaining from work, thus none appeared for the complainant however, accused/respondent appeared in person. The case was fixed for 1st May, 2015 when none appeared for the complainant and proxy counsel for the accused appeared and sought exemption from appearance of the accused/respondent which was allowed

and the matter was listed for complainant's evidence on 9th July, 2015. On 9th July, 2015 again none appeared for the complainant though counsel for the accused appeared. The Court also directed that an affidavit be filed by the complainant as to whether the complainant maintained the bank account. The matter was listed for consideration on the point of territorial jurisdiction for 11th September, 2015 when despite pass-over none appeared for the complainant nor was the mandate of the earlier order complied with. Thus the complaint was dismissed for non-appearance and the respondent was acquitted.

5. According to learned counsel for the appellant, the authorised representative of the appellant and the counsel for the appellant were diligently following the matter however, on 1st May 2015 since there was a strike of lawyers, none appeared and the next date of hearing was not noted in the dairy of learned counsel. Copies of the pages of the diary for the dates 1st May, 2015, 9th July, 2015 and 11th September, 2015 have been placed on record. It was only in the month of October, 2015 when the clerk of the counsel for the appellant was filling up the diary for the year 2016 that it was realized that in the above noted complaint case no date had been mentioned since 1st May, 2015. On inspection of the file it was revealed that the complaint was dismissed on 11th September, 2015.

6. For the documents placed on record coupled with the copies of the diary of the counsel, this Court is of the opinion that sufficient cause has been shown by the appellant for non-appearance before the learned Trial Court 1st May, 2015 and the three dates thereafter when the lawyers were abstaining from working.

7. The impugned judgment dated 11th September, 2015 dismissing the

complaint in default under Section 256 Cr.P.C. is set aside subject to the appellant paying a cost of ₹10,000/- to be paid to the respondent on the next date of hearing fixed before the learned Trial Court.

8. Appeal is disposed of.

9. Parties are directed to appear before the learned Trial Court on 20th March, 2018.

10. Order dasti.

(MUKTA GUPTA) JUDGE FEBRUARY 27, 2018 'vn'