Sumeer Mahajan vs Rajeshwar Singh & Anr

Brijesh Sethi, J

+ CRL.L.P. 114/2018

+ CRL.L.P. 115/2018

+ CRL.L.P. 116/2018

+ CRL.L.P. 117/2018

+ CRL.L.P. 118/2018

Vide above captioned five petitions, petitioner is seeking leave to file appeal against the order dated 13th December, 2017 passed by the learned

Metropolitan Magistrate, vide which respondents have been acquitted in the complaint case under Section 138 of Negotiable Instruments Act, 1881 by

the petitioner. Vide impugned order of 13th December, 2017, petitioner’s complaints have been dismissed for non appearance by the learned trial

court while observing that non appearance of petitioner on that day shows that petitioner is not interested in pursuing the matter.

At the hearing, learned counsel for petitioner submits that non appearance of petitioner before the learned trial court on 13th December, 2017 was

neither deliberate nor intentional and in these circumstances, the petitions be allowed in the interest of justice.

Learned counsel appearing for the respondents has opposed these petitions submitting that the impugned order suffers from no infirmity and these

petitions deserve dismissal.

Heard.

The submissions advanced by learned counsel for the parties have been heard and in view of the fact that non-appearance of the petitioner was

neither intentional nor deliberate, this Court finds it to be a fit case for grant of leave.

In view of aforesaid, these petitions are allowed and are directed to be registered as an appeal accordingly.

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Admit.

Mr. Prabhakar Pandey, Advocate for respondent No.1 and Ms.Priyanka Rai, Advocate for respondent No.2, accept notice of admission.

The above captioned five appeals have been preferred against the order dated 13th December, 2017 passed by the learned trial court vide which

appellant’s complaint under Section 138 of the Negotiable Instruments Act, 1881 have been dismissed for non appearance while observing that

appellant had not been appearing before the learned trial court and seems to be not interested in further prosecution of his complaints.

At the hearing, learned counsel for the appellant submits that in all, twenty three complaints have been filed by the petitioner against the respondent

and these complaints were listed on 3rd October, 2017 before the learned Metropolitan Magistrate and since the complainant had not appeared on the

said date, the matters were adjourned to 11th January, 2018. It is stated that the appellant was under the impression that all the twenty three

complaints were adjourned for 11th January, 2018 and was unaware that the five complaints were adjourned for 13th December, 2017 and on the said

date, those five complaints were dismissed for non appearance of appellant/complainant. It is further submitted that date of 13th December, 2017 was

not in the knowledge of appellant and his non appearance was, therefore, neither deliberate nor intentional. It is further submitted by learned counsel

for appellant that respondent No.1 was already declared proclaimed offender before the learned trial court and great prejudice would be caused to

appellant if respondents are let free for the offence in question. It is further submitted by learned counsel for appellant that it is a case of wrong noting

of date and these appeals are supported by affidavits of appellant and, therefore in the interest of justice, impugned order of 13th December, 2017 be

set aside and appellant’s complaints be restored.

On the other hand, learned counsel appearing on behalf of respondents has opposed these appeals on the ground that the impugned order suffers from

no illegality or infirmity.

After hearing learned counsel for both the parties, this Court finds that non-appearance of appellant before the learned trial court on 3rd October, 2017

and 13th December, 2017 was neither deliberate nor intentional but because of wrong noting of date and for this lapse, appellant should not be made to

suffer. Moreover, this Court is of the opinion that it is in the interest of justice if the cases are heard and decided on merit rather than dismissing the

same for non appearance.

In view of the aforesaid, the appeal is allowed. The impugned order dated 13th December, 2017 passed by the learned trial court dismissing

appellant’s complaints under Section 138 of Negotiable Instruments Act, 1881 for non appearance, is set aside and the complaints are restored to

their original position.

Let the parties appear before the learned trial court on 31st March, 2020, for further proceedings in accordance with the law.

With directions as aforesaid, the above captioned five appeals stand disposed of accordingly.