Delhi High Court

Alok Chopra vs Dhruv Verma on 19 December, 2023

Author: Sudhir Kumar Jain

Bench: Sudhir Kumar Jain

                          $~
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                    Reserved on: October 6, 2023
                                                             Decided on: December 19, 2023

                          +      CRL.L.P.24/2019

                                 ALOK CHOPRA                                ..... Petitioner
                                                   Through:     Mr.      Shiv          Chopra,
                                                                Ms. Aadhyaa Khanna and
                                                                Mr.    Siddharth        Arora,
                                                                Advocates.
                                                   V
                                 DHRUV VERMA                                  ..... Respondent
                                                   Through:     Respondent in person.

                                 CORAM
                                 HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

                                 JUDGMENT

CRL.M.A.433/2019 (condonation of delay)

1. The petitioner has filed the present leave petition after a

considerable delay of about 706 days. It is stated that the impugned

order was passed on 07.12.2016 and the present leave petition/appeal

had to be filed before the expiry of 60 days. The petitioner was never

informed by his counsel about the passing of the impugned order on

07.12.2016 whereby the complaint under section 138 of the

Negotiable Instruments Act, 1881 (hereinafter referred to as "NI

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 1

Act") bearing CC no.22916/2016 titled as Dr. Alok Chopra V

Dhruv Verma was ordered to be dismissed for non-prosecution.

2. The petitioner was in constant telephonic contact with the

counsel who assured him that his matter is being pursued with due

diligence and also assured that during the years 2017-18, the

petitioner was being effectively represented. The petitioner came to

know about the dismissal of the present complaint for want of

prosecution in December, 2018 when he was informed by the counsel

about the dismissal of the complaint for non-prosecution. The

authorized representative of the petitioner also left the employment.

The non appearance of the petitioner was neither deliberate nor

intentional. The application is supported by the affidavit of the

petitioner who is aged more than 65 years.

3. The respondent argued that the petitioner has filed the present

leave petition after more than 02 years from the date of dismissal of

the complaint without giving any cogent reason.

4. It appears that the petitioner was not properly informed by his

previous counsel about the passing of the impugned order dated

07.12.2016 whereby the complaint was ordered to be dismissed in

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 2

default as well as for non-prosecution. The petitioner cannot be

punished for the negligence or slackness on the part of the previous

counsel. The petitioner has shown sufficient cause for his non-

appearance before the trial court. After considering all facts, the

delay of 706 days in filing the present criminal leave petition is

condoned.

5. The application stands disposed of.

6. Leave granted.

7. The present petition stands disposed of.

Criminal Appeal No. ________/2023 (to be numbered)

8. The present appeal is filed under section 378 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as "the Code") to

impugn the order dated 07.12.2016 (hereinafter referred to as the

"impugned order") passed by the court of Ms. Geetanjali, MM-03,

New Delhi District, Patiala House Courts, New Delhi (hereinafter

referred to as the "trial court") whereby the complaint bearing

no.22916/2016 titled as Dr. Alok Chopra V Dhruv Verma filed by

the petitioner under section 138 of the Negotiable Instruments Act,

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 3

1881 (hereinafter referred to as "NI Act") was ordered to be

dismissed in default as well as for non-prosecution.

9. The petitioner filed the abovementioned complaint on the

basis of the cheques as detailed in the complaint stated to have been

signed and issued by the respondent, which upon presentation, got

dishonored with the remark "Funds Insufficient" vide cheque

returning memo dated 19.01.2011. The respondent did not pay the

cheque amount despite the legal notice issued on 24.01.2011.

10. The trial court vide the impugned order had dismissed the

complaint bearing CC no.22916/2016 filed by the petitioner in

default as well as for non-prosecution. The impugned order is

reproduced as under:

Perusal of the record shows that none is appearing on behalf of complainant for the last three dates. Today also, none is responding on behalf of complainant despite repeated calls.

From the above said facts, it may be concluded that complainant is not interested to pursue present complaint case hence present complaint case is dismissed in default as well as for non prosecution.

11. Being aggrieved by the impugned order, the petitioner filed the

present appeal to challenge the impugned order on the grounds that

the petitioner was not being effectively represented in the trial court.

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 4

The previous counsel for the petitioner did not appear before the trial

court on several occasions and neither did he inform the petitioner

about the dismissal of the complaint in default as well as for non-

prosecution. Instead, the previous counsel informed the petitioner

that his case is being regularly attended and is being pursued

diligently. The complaint filed by the petitioner was for dishonour of

cheques totalling to Rs.89,00,000/- and grave financial prejudice

shall be caused to him if the present appeal is not allowed. The

petitioner should not suffer due to the ineffective and incomplete

legal assistance by the previous counsel.

12. The counsel for the petitioner advanced oral arguments and

also submitted the written arguments. The counsel for the petitioner

argued that the respondent has admitted his liability by writing a

letter to the petitioner. The counsel for the petitioner, in his written

submissions, referred to various dates of hearing and proceedings

conducted before the trial court and stated that the respondent was

ordered to be summoned vide order dated 22.06.2012. The complaint

was adjourned for issuance of summons to the respondent as well as

for issuance of court notice to the petitioner which were issued again

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 5

and again. The petitioner, being a doctor, was unavailable to appear

in person and was by assured by the counsel that he would be

represented properly. It is argued that the non-prosecution of the

complaint was not deliberate as he was assured by his counsel that he

would be represented properly. Accordingly, the counsel for the

petitioner, after citing various decisions passed by the Supreme Court

and Coordinate Benches of this Court, prayed that the complaint

bearing CC no.22916/2016 be restored.

13. The respondent advanced oral arguments and also submitted

written submissions. In his preliminary submissions, the respondent

argued that the petitioner was not being represented for about three

and a half years either in person or through authorized

representative/counsel/proxy counsel. The petitioner was directed to

appear in person on 25.10.2016 vide order dated 28.09.2015 to

advance arguments on the issue of jurisdiction for which the

appearance of the petitioner was essential due to the Negotiable

Instruments (Amendment) Act, 2015. The trial court issued court

notices several times to the petitioner but despite those court notices,

the petitioner did not appear and due to this reason that trial court

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 6

could not proceed further the including the giving of notice under

section 251 of the Code. There is no infirmity in the impugned order

dated 07.12.2016 and the dismissal of the complaint as per section

256 of the Code.

13.1 In his detailed submissions, the respondent after referring the

dates of hearing before the trial court, argued that during the 13 dates

of hearing before the trial court spanning over three and a half years

since the respondent was summoned on 11.07.2013, the petitioner

was not present on 10 dates either in person or through any

authorized representative including the advocate. The trial court had

issued court notice to the petitioner five times. The respondent had

appeared on 11 dates of hearing out of the 13 dates. The respondent

also gave details of various hearings before the trial court to show

that the petitioner was not diligent in prosecution of the complaint.

The respondent also gave the litigation history between the petitioner

and the respondent. The respondent has cited judgments passed by

the Supreme Court titled as Associated Cement Co. Ltd. V

Keshvanand, (1998) 1 SCC 687; M/s Ajeet Seeds Ltd. V K.

Gopala Krishnaiah, Criminal Appeal No.1523/2014 decided on

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 7

16.07.2014; M/s BLS Infrastructure Limited V M/s Rajwant

Singh & Others, Criminal Appeal Nos.657-664/2023 decided on

01.03.2023; and the judgment of this Court in CRL.L.P. 172/2016

titled as Rajeev Kumar V Gagan Makhija decided on 07.08.2019.

14. A Coordinate Bench of this Court in Koutons Retail India

Ltd. V Pramod Prasad Gupta & Anr., W.P. (Civil) No. 8917/2007

decided on 29.09.2008 observed as under:-

13. To my mind, this is also a case where the petitioner appears to have been a victim of the inaction, negligence and misdemeanor of its counsel, who has conducted himself in a very unprofessional manner in this case. The conduct of the counsel is also clear from the observations made by the Learned Labour Court in its orders. Furthermore, the fact remains that even though the award against the petitioner was passed in the presence of its counsel, he did not inform his client, i.e. the petitioner, about this. It is noteworthy that as soon as it came to the petitioner's knowledge that the said award has been passed against it, steps were taken by it to get all the relevant records of the cases from its counsel. In addition, the petitioner even filed a complaint against its counsel with the Bar Counsel of India.

14. Under the circumstances, I am of the opinion that the petitioner should not be made to suffer for the inaction and negligence of the petitioner's counsel. It deserves to be given a fair opportunity to present and defend its case.

15. Consequently, impugned award dated 3.3.2006 in ID No.145/2005 is set aside, the matter is remanded to the Labour Court for decision afresh after issuing the requisite notice to all parties and proceeding with the matter de novo from there. The Labour Court is directed to deal with and

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 8

decide the matter within six months from today.

15. The present complaint pertains to cheques total amounting to

Rs.89,00,000/- which were dishonoured due to insufficient funds.

There is no dispute by the respondent regarding the fact that the said

cheques were signed and issued by him and also regarding the

dishonour of the cheques on the ground „Funds Insufficient‟. The

petitioner is stated to be a qualified doctor. The petitioner was under

the impression that he would be adequately represented by his

previous counsel. The various orders passed by the trial court are

reflecting that the petitioner and his counsel were not diligent in the

prosecution of the complaint. However, mere negligence either on the

part of the petitioner or his counsel in prosecution of the complaint

should not be a ground for not restoring the complaint. The petitioner

cannot be allowed to be suffer due to the negligence of his previous

counsel.

16. After considering all facts, the impugned order dated

07.12.2016 passed by the trial court is set aside and the complaint

bearing CC no.22916/2016 titled as Dr. Alok Chopra V Dhruv

Verma is ordered to be restored to its original number before the trial

court subject to the cost of Rs.25,000/- to be paid by the petitioner to

Signing Date:21.12.2023 CRL.L.P. 24/2019 Page 9

the respondent on the next date of hearing before the trial court.

17. The petitioner and the respondent are directed to appear in

person before the trial court on 15.01.2024 at 2:30 p.m. for further

directions.

18. Copy of this judgment be sent to the concerned trial court for

information and compliance.