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2016 DIGILAW 295 (PNJ)

Isotech Engineers Private Limited v. Rupesh Yadav

2016-01-22

HARI PAL VERMA

body2016
JUDGMENT : HARI PAL VERMA, J. This is an application under Section 5 of the Limitation Act seeking condonation of delay of 77 days in filing the present application under Section 378(4) Cr. P.C. seeking leave to appeal against the judgment dated 24.12.2013 passed by Judicial Magistrate, 1st Class, Gurgaon. It has been pleaded that learned Magistrate has dismissed the complaint filed by the applicant, in default, for want of prosecution vide order dated 24.12.2013 and acquitted the accused. However, the certified copy of the same was delivered to the applicant on 22.1.2014. Thereafter, the applicant approached the conducting counsel to file an appeal against the order dated 24.12.2013 and the case was handed over to him in the month of February, 2014. Counsel for the applicant was under the impression that appeal against the order of acquittal was to be filed before the Court of Sessions at Gurgaon and when he approached the registry on 21.2.2014 to file the appeal, he was informed that on account of dismissal of complaint in default, the appeal lies before High Court. Thus, delay of 77 days has occurred in filing the instant application under Section 378(4) Cr P.C. The grounds stated in the application seem to be justified. Thus, the applicant has been able to establish sufficient cause warranting condonation of delay in filing the instant application. Accordingly, the application is allowed and the delay of 77 days in filing the present application, seeking leave to appeal, is condoned. Criminal Misc. No. A-884-MA of 2014: This application has been moved under Section 378(4) of the Code of Civil Procedure for grant of leave to appeal against the order dated 24.12.2013 passed by the Court of Judicial Magistrate, 1st Class, Gurgaon. I have heard learned counsel for the parties, besides perusing the record with due care and circumspection. Leave granted. Main case: Challenge in this appeal is to order dated 24.12.2013 passed by the Court of Judicial Magistrate, 1st Class, Gurgaon, whereby the complaint filed by the applicant-appellant under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 IPC has been dismissed for want of prosecution and the accused has been acquitted. Learned counsel for the applicant-appellant contends that the said complaint was filed on 8.4.2010 and preliminary evidence was closed. Learned counsel for the applicant-appellant contends that the said complaint was filed on 8.4.2010 and preliminary evidence was closed. Thereafter, the case was adjourned for service of notice upon the respondent-accused for 6.7.2010 and the respondent appeared before the Court on 20.4.2012 after a gap of about two years. The complainant closed his evidence on 21.1.2013. The accused compromised the matter before Mediation and Conciliation Cell and as per the compromise entered between the parties, respondent-accused paid Rs. 20,000/- in cash and gave 17 postdated cheques of Rs. 5,000/- each and one cheque of Rs. 2150/- before the trial Court and also made a statement that in case of default in any payment, the applicant-complainant reserves his right to pursue the complaint and recover the unpaid amount along with 9% interest. In view of the aforesaid arrangement between the parties, the complaint was dismissed as withdrawn. However, when the applicant-complainant presented cheque No. 834003 dated 21.3.2013 of Rs. 5,000/- and another cheque No. 834004 dated 21.4.2013 of Rs. 5,000/- then both the cheques were dishonoured, compelling the applicant-appellant to seek restoration of the complaint. Consequently, the complaint was restored. However, on 24.12.2013, the complaint was dismissed for want of prosecution, as the complainant-applicant could not appear before the Court. Learned counsel submitted that the complainant was out of station to attend some meeting and though he was under the belief that he would reach the Court in time, but due to unavoidable circumstances on account of traffic jam, he could not reach the Court in time. Thus, nonappearance of the complainant on the relevant date was beyond is control and therefore, dismissal of the complaint in default for want of prosecution has prejudiced his cause. On the other hand, learned counsel for the respondent-accused submits that under Section 256 Cr. P.C. when the complainant is not present before the Court on the appointed date, the complaint is liable to be dismissed. I have heard learned counsel for the parties and perused the impugned order. The conduct of the respondent-accused clearly shows that he was not inclined to settle the claim of the applicant-complainant and now, he wants to derive benefit of Section 256 Cr. P.C. which is certainly a technical defence. Dismissal of the complaint on account of nonappearance of the complainant, which was beyond his control, will certainly cause miscarriage of justice to the applicant-complainant. P.C. which is certainly a technical defence. Dismissal of the complaint on account of nonappearance of the complainant, which was beyond his control, will certainly cause miscarriage of justice to the applicant-complainant. Reference may be made to judgment of a coordinate Bench of this Court titled Neh Pal Sharma vs. Bijender Singh 2009 (2) RCR (Criminal) 751, wherein it was held that dismissal of complaint in default is too harsh for the complainant to non suit him merely for his nonappearance on a particular date. Therefore, this Court finds that ends of justice will be met if the complainant is given another chance to put forward his claim. Accordingly, the present appeal is allowed and order dated 24.12.2013 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. Parties are directed to appear before the trial Court on 15.2.2016. Registry to transmit a copy of this judgment to the trial Court well before the said date.