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2022 DIGILAW 926 (RAJ)

Mohd. Siddiqui v. Sarita Chittora

2022-03-21

PUSHPENDRA SINGH BHATI

body2022
ORDER 1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned. 2. The appellant has preferred these leave to appeal claiming for the following reliefs:- CRL.L.V.A. No.109/2018 : 'It is therefore, most respectfully prayed that this leave to appeal may kindly be allowed and appellant may be granted leave to appeal against the impugned order dated 22.09.2017 passed by the learned Special Judicial Magistrate (N.I. Act Cases) Court No.2, Udaipur. It is further prayed that this memo of leave to appeal may be treated as appeal and the appeal may kindly be allowed and impugned order dated 22.09.2017 may kindly quashed and set aside and the proceeding in criminal Case No.590/2016 pending before the learned Special Judicial Magistrate (N.I. Act Cases) Court No.2, Udaipur may kindly be allowed to continue and decided on merits.' 3. Counsel for the appellant submits that being holder of the cheque the appellant was entitled to be examined and get his rights adjudicated regarding Negotiable Instrument in-question. 4. Counsel for the appellant submits that in the capacity of holder of the cheque, Power of Attorney of the appellant was being examined but for the first time on 16.05.2017 the learned court below passed an order directing the appellant to remain present in-person to be examined as a complainant. The appellant could not do so, thus, without giving him sufficient opportunity on 22.09.2017 the case under Section 138 of the Negotiable Instrument Act was dismissed. 5. The appellant being complainant has come before this Court. 6. After arguing for considerable time Mr. Rakesh Arora, counsel for the appellant, submits that at best for the delay caused the appellant is prepared to pay heavy cost as he was not able to convince the Court on count of complainant not having been available before learned trial court even in the summary proceedings under Section 138 of Negotiable Instrument Act. 7. Counsel for the respondent submits that the complainant had to be swift if he at all wanted to exercise his right under Section 138 Negotiable Instrument Act and in case he has failed to do so, he cannot take advantage of his non-appearance by seeking re-adjudication of the matter at this belated stage. 8. 7. Counsel for the respondent submits that the complainant had to be swift if he at all wanted to exercise his right under Section 138 Negotiable Instrument Act and in case he has failed to do so, he cannot take advantage of his non-appearance by seeking re-adjudication of the matter at this belated stage. 8. This Court looking into the peculiar facts and circumstances of the case finds that window of appearance for the appellant was only from 16.05.2017 to 22.09.2017, is inclined to grant indulgence. This Court is in agreement with the submission of counsel for the respondent that the summary proceedings have to be swiftly dealt with and the order impugned is justified. However, the appellant himself was prepared to pay the cost for the delay caused. 9. The present leave to appeals are disposed of while quashing the order dated 22.09.2017 and giving opportunity to the appellant to appear before learned trial court on 11.04.2022 for further adjudication in the matter. 10. The learned trial court shall continue with the proceedings after recording his presence and the appellant shall also deposit a cost of Rs.50,000/- each for two cases on 11.04.2022 before trial court and the same shall be released to the respondents as cost of litigation and compensation for causing delay in the litigation. 11. The learned trial court is directed to decide the matters separately strictly in accordance with law expeditiously. 12. In case, the appellant fails to deposit cost or appear before the trial court on 11.04.2022, this order shall stand nullified.