Singh Raj vs Jagjeet Sharma

R.P. Nagrath, J.

CRM No. 50202 of 2012

The applicant-appellant filed a complaint against the respondent-accused for offence u/s 138 of Negotiable Instruments Act. The learned Magistrate had issued the process against the respondent-accused for 10.01.2011, when the complaint case was dismissed in default for non-appearance of the appellant-complainant.

Instant appeal has been filed after the delay of 529 days which occurred mainly because the appellant firstly preferred an application for recalling of order which was in fact not maintainable before the Magistrate. Thereafter the appeal before the Sessions Court was filed, which was rather maintainable only before this Court.

The prayer for the condonation of delay has been opposed.

After hearing learned counsel for the parties and going through the orders in question there is found sufficient merit in the prayer made by the applicant-appellant.

The record would show that most of the time was consumed in pursing the appeal which was filed before the Sessions Court. It has been settled by this Court in M/s. Tata Steel Ltd. Vs. M/s. Atma Tube Products Ltd. and Others, decided on 18.03.2013 that in a complaint case, the appeal against acquittal lies before this Court. The filing of a petition before the Magistrate for recalling of the order of dismissal initially is a technical issue for which the respondent can be adequately compensated with appropriate costs.

In view of the above discussion, the application for condonation of delay of 529 days in filing the instant appeal is allowed subject to payment of Rs. 5000/- as costs.

CRM-A-707-MA of 2012

Heard.

Summoning order was passed for offence u/s 138 of Negotiable Instruments Act, 1881 on 25.10.2010. Learned Magistrate issued process against respondent-accused for 10.01.2011 on which date the complaint was dismissed for non-prosecution. It is the case of appellant that his counsel noted the date fixed by the trial Court as 13.01.2011 instead of 10.01.2011 by mistake. That was even the ground taken before the Magistrate when the appellant applied for recalling of the order dated 10.01.2011. This contention thus cannot be dubbed as an afterthought. The appellant is pursuing his cause right from beginning with great earnest.

In view of the aforesaid facts, the instant appeal is allowed and the order dated 10.01.2011 passed by the learned Magistrate dismissing the complaint case in default of appearance of appellant which amounted to acquittal of the respondent, stands set aside subject to payment of another sum of Rs. 5000/- as costs and the matter is remitted to the Court of Magistrate for proceeding further in the matter in the complaint case in accordance with law. Both the parties are directed to appear before the learned Magistrate on 19.08.2014 and it is directed that the amount of Rs. 10,000/- as costs while permitting the application of condonation of delay and setting aside the order of dismissal for non-appearance shall be paid to the respondent on the aforesaid date fixed before the Magistrate, failing which the instant appeal would stand dismissed.