M/S Siyaram Brothers vs Sh. Shiva Enterprises
2020 Latest Caselaw 269 Del

$~16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                         Date of decision: January 16, 2020

+      CRL.L.P. 436/2018

       M/S SIYARAM BROTHERS                          ..... Petitioner

                          Through        Mr. Chetan Roy and Mr. Girdhar
                                         Singh, Advocates

                          Versus


       SH. SHIVA ENTERPRISES                         ..... Respondent


                          Through        Mr. Saurabh Soni and Mr. Sanjeev
                                         Kumar Thakur, Advocates

CORAM:

       HON'BLE MR. JUSTICE BRIJESH SETHI

                          JUDGMENT

BRIJESH SETHI, J (oral)

CRL.M.A. 7585/2019

The present application has been filed by respondent for condonation of delay of 37 days in filing of reply to the petition.

For the reasons given in the application, the delay of 37 days in filing reply is condoned and reply is taken on record.

Application stands disposed of.

CRL.L.P. 436/2018

Vide this petition, petitioner seeks to file leave to appeal against the order dated 2nd May, 2018 passed by the learned trial court. Vide order dated 2nd May, 2018 the Complaint Case No. 527017/2016 filed by the petitioner was dismissed by the learned MM, Central District, Tis Hazari Courts, Delhi on the ground that steps for summoning of witnesses had not been taken by the complainant . The learned trial court further observed that the matter pertained to the year 2014 and had already consumed four years and Charge has not been framed and also that the respondent/accused had been summoned for the offences under Section 420 IPC, which is a compoundable offence and proceeded to discharge the accused in terms of Section 249 Cr.P.C.

At the hearing, learned counsel for the petitioner submitted that on 2nd May, 2019 when the complaint was taken up for hearing, the complainant was represented through proxy counsel and that complainant's non-appearance before the trial court on earlier dates was neither intentional nor deliberate.

On the other hand, learned counsel appearing on behalf of respondent/accused drew attention of this Court to the fact that petitioner had not appeared before the learned trial court on 5 th March, 2018; 26th March, 2018 and 4th April, 2018 and that petitioner had not taken steps for summoning of witnesses and was thereby not diligent in pursuing his complaint and therefore, the

learned trial court has rightly dismissed petitioner's complaint for non-prosecution and discharged the respondent/accused.

Heard.

I have considered the rival submissions and perused the trial court record as well as impugned judgment. The pleas urged by both the sides need to be considered on merits and, therefore, this petition seeking leave to file appeal against the order dated 2nd May, 2018 is allowed.

Crl. A................/2020 (to be numbered)

The Registry is directed to number the appeal.

Admit.

Notice.

Learned counsel for respondent accepts notice.

The present appeal preferred by appellant against dismissal of his complaint vide order dated 2nd May, 2018 passed by the learned trial court on the ground of petitioner's non appearance on five consecutive dates of hearing and for not taking steps for summoning of witnesses and thereby, discharging respondent/accused of the offence committed.

At the hearing, learned counsel for the petitioner submitted that on 2nd May, 2019 when the complaint was taken up for hearing, complainant's counsel was stuck up before the State Consumer

Commission but complainant was represented through proxy counsel and that complainant's non-appearance before the trial court was neither intentional nor deliberate. Learned counsel for petitioner also submitted that in the impugned order, learned trial court has erroneously recorded complainant had not been appearing for last five dates.

Learned counsel appearing on behalf of respondent/accused urged that the learned trial court has rightly dismissed petitioner's complaint for non-prosecution and discharged the respondent/ accused and therefore, this appeal deserve dismissal.

Heard.

I have considered the rival contentions and have gone through the trial court record and I find that the complaint in question pertains to the year 2014 and in October, 2016, respondent/accused was summoned for the offence under Section 420 IPC. Thereafter, on 23rd November, 2016; 19th January, 2017; 23rd February, 2017; 22nd March, 2017 and 27th April, 2017, respondent/accused did not appear before the leaned trial court and on 26 th May, 2017 bailable warrants were issued against him and the complaint stood adjourned for service of bailable warrants upon respondent/ accused on 27 th June, 2017 and 19th July, 2017. Consequently, for non appearance of respondent/accused, the learned trial court vide order of 16 th August, 2017 had issued process under Section 82 Cr.P.C. and the accused was produced from JC only on 1st February, 2018. That is to say,

from November, 2016 till February, 2018 the complaint stood adjourned only for appearance of respondent/accused.

On 1st February, 2017, the complaint was fixed for hearing on 3rd March, 2018, which was declared a holiday and the complaint was taken up on 5th March, 2018 in post lunch session as the learned presiding officer was said to be on half day leave in pre-lunch session and therefore, non appearance of petitioner cannot be said to be deliberate. The complaint was further posted for 4th April, 2018 but was taken up on 22nd March, 2018 and 26th March, 2018 for reconsideration of release of accused, of which no notice was given to the complainant. It is only on 4th April, 2018 that none had appeared on behalf of complainant but on 2nd May, 2018 when the impugned order was passed, complainant was duly represented through proxy counsel.

In view of the above, it is clear that absence of the petitioner before the learned trial court was neither intentional nor deliberate. Keeping in mind the fact and circumstance of the case, it will be in the interest of justice if petitioner's complaint is decided on merits.

The appeal stands allowed accordingly. The impugned order dated 2nd May, 2018 is set aside and the criminal complaint filed by the petitioner/complainant before the learned trial court shall stand restored to its original position and stage.

Parties shall appear before the concerned learned Metropolitan Magistrate on 22nd February, 2020 for further proceedings in

accordance with law. Ld. MM concerned will issue production warrants against respondent for appearance.

With aforesaid directions, the appeal stands disposed of.

(BRIJESH SETHI) JUDGE JANUARY 16, 2020 savita