Rajeev Kumar vs Gagan Makhija.
2019 Latest Caselaw 3680 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                          Decided on: 7th August, 2019

+                         CRL.L.P. 172/2016

       RAJEEV KUMAR                                        ..... Petitioner
                Represented by:           Mr. Rahul Dubey, Advocate

                                 versus

       GAGAN MAKHIJA.                                       ..... Respondent
               Represented by:            Mr. Rajiv R. Mishra, Mr. Sanchit
                                          Bhushan, Advocates

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

Crl.M.A.4488/2016 (delay) For the reasons stated in the application and because the petitioner was pursuing a wrong remedy of filing the appeal before the learned Additional Sessions Judge which was dismissed vide order dated 22 nd January, 2016, the delay in filing the leave to appeal petition is condoned. CRL.L.P. 172/2016

1. Aggrieved by the order dated 19th November 2015, passed by the learned Metropolitan Magistrate in CC No.90/1/14 titled as 'Rajeev Kumar v. Gagan', whereby the complaint preferred by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (in short 'NI Act') was dismissed in default for non-appearance and the respondent/accused was acquitted. Having perused the record and as the petitioner has rendered

sufficient cause for non-appearance, this Court deems it fit to grant leave to appeal.

2. Petition is disposed of.

Crl.A.No.           /2019
1.     Admit.
2.     Registry is directed to number the appeal.

3. Facts leading to the filing of the complaint by the petitioner are that the respondent approached him on 5th December 2012 for a friendly loan of ₹3,50,000/-. The petitioner advanced a friendly loan of ₹3,50,000/- without interest to him and she promised to return the same within a period of six months. It was mutually agreed that in case the said amount of ₹3,50,000/- is repaid by the respondent within 6 months that is on 5th June 2013 then no interest will be charged by the petitioner but in case the respondent fails to repay the said amount on or before 5 th June 2013 then interest will be charged by the petitioner on the loan amount from the date when the loan was granted.

4. On expiry of six months that is in the month of July 2013, petitioner approached the respondent and asked him to re-pay the said amount but the respondent requested further two months' time on the pretext that he could not arrange the money and time was extended for further two months. Despite this extension, the respondent failed to clear his dues. In order to discharge the liability, respondent issued a cheque bearing number 199868 dated 21st November 2013 for a sum of ₹3,50,000/- drawn on Dena Bank, Pocket F/22, Sector 3, Rohini, Delhi.

5. When the cheque was presented for encashment on 5th December 2013, it was returned unpaid with remarks "Insufficient Funds" vide return

memo dated 6th December 2013. Legal notice dated 23rd December 2013 was sent to respondent through speed post on 24th December 2013, however, despite notice, respondent failed to make the payment within the stipulated period of time, hence, the complaint filed by the petitioner.

6. In the pre-summoning evidence, the petitioner tendered his evidence by way of an affidavit vide Ex. CW-1/A and exhibited the relied upon documents vide Ex. CW-1/1 to Ex. CW-1/6.

7. A perusal of order sheets of the learned Trial Court reveals that on 11th February 2014, the petitioner along with his counsel were present and learned Metropolitan Magistrate was pleased to issue summons against the respondent. Thereafter, on 5th July 2014 learned counsel for the petitioner was present but learned Metropolitan Magistrate was not available on account of training and the date was fixed for 17th November 2014.On 17th November 2014, learned counsel for the petitioner was present and bailable warrants were issued against the respondent in the sum of ₹5,000/-. On 16th March 2015, when notice was required to be framed the case was transferred to Metropolitan Magistrate-01, North, Rohini vide circular dt. 11th March 2015 and the matter was fixed for 23rd July 2015. On 23rd July, 2015 none appeared before the learned Metropolitan Magistrate at Rohini District Court as the advocates were on strike. On 19th November 2015, the complaint was dismissed on account of non-appearance on behalf of the petitioner.

8. Considering the explanation rendered by the petitioner that on 23rd July, 2015 because of the strike of the lawyers neither the lawyer nor the complainant could appear and the clerk of the counsel for the complainant wrongly noted the next date as 1st December, 2015 and thus they could not appear before the Trial Court on 19th November, 2015 and that on 1st

December, 2015 when the complainant along with counsel appeared before the Court he came to know that the complaint had already been dismissed for non-prosecution as also the fact that the counsel for the petitioner was present before the court on each and every date, this court deems it fit to restore the complaint to its original position subject to cost. The impugned order dated 19th November 2015 dismissing Complaint Case No.90/1/14 titled as 'Rajeev Kumar v. Gagan which was pending in the Court of learned Metropolitan Magistrate North Rohini court is restored to its position subject to the petitioner paying a cost of ₹5,000/- to the respondent on the date before the learned Trial Court which is fixed as 2nd September, 2019 when the petitioner with his counsel and respondent with his counsel will be present in Court.

9. Appeal is disposed of.

10. Order Dasti.

(MUKTA GUPTA) JUDGE AUGUST 07, 2019 'rk'