CRL.A./990/2012 of GARG TECHNO CONVEYORS Vs SANTOSH KUMARI & ANR.

$-12*IN THE HIGHCOURTOF DELHIAT NEW DELHI

+CRL.L.P. 22/2010

GARG TECHNO CONVEYORSPetitionerThrough: Mr. B.S. Arora, Adv.

versus

SANTOSH KUMARI & ANR.RespondentsThrough:None

CORAM:HON'BLE MR. JUSTICE A.K. PATHAK

ORDER%24.08.2012

CRL.L.P.No. 22/2010

Reply of the respondents to the petition is on record and hasbeen perused.

Petitionerfileda complaintunderSection138 of theNegotiable Instruments Act, 1881 (for short hereinafter referred toas"theAct")againsttherespondents.Afterrecordingpre-summoning evidence. Metropolitan Magistrate had summoned therespondents.

Subsequently,complainthas been dismissedin defaulton 8^''

December, 2009 since petitioner remained unrepresentedon thatday. It may be noted that even accused did not appear in court thatday.

Petitionerseeks leave to appeal against the order dated 8"^December, 2009 on the ground that the petitioner was present in themorningbut had to gone to Ghaziabadto attenda matterbeforetheSales Tax Authoritiesand at about 2 PM when his counsel reachedthe court he came to know that the matter had been dismissedindefault. In reply of the respondentthis averment has remainedunrebutted. In the above facts and circumstances, leave to appeal isgranted. Registry to register the case as an appeal.Crl. A. No.72012 (to be numbered)

It emerges from the record that the appellant had filedcomplaint under Section 138 of the Act against the respondents,before the Trial Court.It was alleged therein that the respondentno. 1 had taken loan of ^2,34,000/- (Rupees Two Lacs Thirty FourThousandOnly) from the appellanton 25'*' June, 2007. Respondentno. 1 executed an indemnity bond and also issued monthly chequesfor ?6,500/- (Rupees Six Thousand Five Hundred) each to clear theloan.On presentation, the cheque for ^6,500/- (Rupees SixThousand Five Hundred) was returned along with return memocontaining remarks "Insufficient Fund".

Learned counsel for the appellant has vehemently contendedthat on ll"" July, 2009 respondentno. 2 appeared in person andstated that the respondents desired to settle the matter with the

appellant;consequently,case was adjournedto 20''' August, 2009.On 20"^ August,2009 appellantreachedcourtlate and was informedthatthe matterhad alreadybeen adjournedto 8"" December,2009.On 8"' December,2009 appellantand his counselappearedincourt but respondentswere not present,therefore,matter was keptpending.Thereafter,appellanthad to leave for Ghaziabadto attenda matter before the Sales Tax Authorities. He instructed his counselto appearin the laterpartof the day. However,bythe time counselreached Court, matter had already been dismissed in default.

Aperusaloforderdated 8"' December,2009 showsthat evenrespondents had failed to appear in court.They remainedunrepresentedeven on the previousdate, that is, 20"^ August,2009.It is not only the appellant but respondents had also remainedunrepresented in court on the above two dates after seekingadjournmenton the ground that they intended to settle the matterwith the appellant. In view of the fact that the matter was pendingfor settlement and even the respondents had not been appearing,Magistrate could have exercised his option to adjourn the case.Dismissal of the complaint is not the only option for the Magistratewhen complainant fails to appear. Sub-Section 1 of Section 256envisagesthat if summonshave been issuedona complaint,and onthe day appointed for appearance of the accused or any day

subsequent thereto, on which hearing may be adjourned, if thecomplainant does not appear the Magistrate shall acquit theaccused, unless for the reason he thinks it proper to adjourn thehearing of the case to some other day. Meaning thereby, thedismissal of the complaint on account of non-appearance of thecomplainant is not the only option. Since respondents were also notpresent and the matter was pending for settlement, it would havebeen proper for the Magistrate to have adjourned the complaint tosome other day.

Keeping in mind the totality of circumstances, I allow thisappeal and set aside the impugned order and restore the complaintto its original number, subject to, however, cost of ^5,000/- (RupeesFive Thousand Only) to be deposited with Delhi High Court LegalServices Committee,within four weeks.

Parties shall appear before the Metropolitan Magistrate on25"' September,2012.

PATHAK, J.

AUGUST 24, 2012rb