Pratima Goel and Another vs Metropolitan Magistrate and Another

Mool Chand Garg, J.—This appeal is arising out of the order passed by the Metropolitan Magistrate who has dismissed the complaint filed by the petitioner u/s 138 Negotiable Instrument Act. Alleging that despite issuance of three cheques bearing Nos. 591498 dated 23.4.2000, 591499 dated 23.5.2000 and cheque No. 591500 dated 23.6.2000 for Rs. 40,000, Rs. 50,000/- and Rs. 38,287/- respectively by respondent No. 2, for the purpose of repaying the amount of deposit made by the complainant to the respondent for three years and which amount was repayable on 23.4.2000. He failed to honour the cheques despite receipt of the statutory notice. Thus the complaint u/s 138 N.I. Act was filed, which was dismissed on 25.11.2005 because the complainant was absent.

Since the discharge of respondent No. 2 amounted to his acquittal the appellant has filed the present appeal. Vide order dated 26.4.2007 leave to file the appeal was allowed. According to the appellants they could not appear on the date fixed in the matter because they were not informed by their counsel about the date of hearing. The appellant No. 1 was pregnant and hospitalised, while appellant No. 2 was taking her care and therefore she also could not appear before the M.M. on 25.11.2005. Infact the first appellant also gave birth to a child on 28.11.2005. Therefore, the reason given by the appellants for their non-appearance is sufficient.

In so far as the respondent is concerned he has taken a defence that the amount was paid to the complainant in view of the dishonoured cheques, but no document has been placed on record in this regard, despite order dated 20.11.2007.

Thus the appeal is allowed. The complaint is restored to its original number. Parties to appear before the trial court on 11th May, 2009. Trial court record, if any, be sent back forthwith.