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2016 DIGILAW 178 (PNJ)

A. K. Manpower Services v. Gromet India Pvt. Ltd.

2016-01-14

HARI PAL VERMA

body2016
JUDGMENT : Hari Pal Verma, J. This application has been moved under Section 378(4) of the Code of Criminal Procedure for grant of leave to appeal against the order dated 22.10.2013 passed by the Court of learned Judicial Magistrate 1st Class, Gurgaon. 2. I have heard learned counsel for the parties, besides perusing the record with due care and circumspection. 3. Leave granted. 4. Through the instant appeal, the appellant has challenged the order dated 22.10.2013 passed by learned Judicial Magistrate 1st Class, Gurgaon whereby criminal complaint under Section 138/141/142 of the Negotiable Instruments Act, 1881 filed by the appellant-complainant, was dismissed for want of prosecution and the accused has been acquitted in the case. 5. Learned counsel for the appellant while referring to various zimni orders passed by learned Magistrate submits that the appellant who has filed the complaint, has been regular in attending the Court proceedings throughout and it is only on 22.10.2013, neither he nor his counsel could appear in the Court and the impugned order has been passed. The cross-examination of CW1 could not be conducted due to the fault of the respondent and the case was adjourned from time to time. In this manner, delay has occurred during the trial which cannot be attributed to the appellant. The counsel for the appellant-complainant could not appear before learned Magistrate before lunch session as he was busy in some other case wherein cross-examination of investigating officer was in progress. However, when the counsel for the complainant appeared before the trial Court in the post lunch session, it came to his notice that the case has already been dismissed for want of prosecution. 6. Learned counsel for the appellant relies upon the judgment of a coordinate Bench of this Court titled Neh Pal Sharma v. Bijender Singh 2009(2) RCR (Criminal) 751 to contend that dismissal of complaint in default is too harsh for the complainant to non-suit him merely for his non-appearance on a particular date. 7. Mr. Kinra, learned counsel for respondent No.1 is fair enough to concede that it is only on that date, the complainant or his counsel did not appear before the trial Court. 8. Heard. 9. 7. Mr. Kinra, learned counsel for respondent No.1 is fair enough to concede that it is only on that date, the complainant or his counsel did not appear before the trial Court. 8. Heard. 9. Considering the various zimni orders as produced in the grounds of appeal and after perusing the impugned order coupled with the judgment of Neh Pal Sharma's case (supra), this Court finds that the appellant has been able to make out a case for interference of this Court. Admittedly, the complaint was filed on 4.1.2012 and the appellant or his counsel have otherwise been attending the Court. It is only for one fault, the complaint was dismissed, which is too harsh for the complainant. 10. Accordingly, the present appeal is allowed and the impugned order dated 22.10.2013 passed by learned Magistrate is set aside. Consequently, the complaint filed by the appellant-complainant is ordered to be restored to its original number and the trial Court is directed to proceed with the same in accordance with law. The parties are directed to appear before the trial Court on 8.2.2016. Registry to transmit the copy of this judgment to the trial Court well before the said date.