Fiitjee Franchise Network Ltd v. Neeraj Jaiswal

ORDER %

05.10.2012 Heard. Leave to appeal is granted to the petitioner. Registry to register this petition as an appeal. Crl. A.//;'f/2012 (To be numbered) Appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent before the Metropolitan Magistrate. After recording pre-summoning evidence. Metropolitan Magistrate summoned the respondent. Matter was at the stage of evidence when, on account of non appearanceof appellant,it was dismissedin defaultvide order dated 22"^ May, 2012 which resulted in acquittal of respondent. It was further observed that the complaint was not properly prosecuted by the complainant (appellant). It appears that oji SO"' September,2011 complainant(appellant)was granted opportunity to lead evidence, subject to cost of ?2,000/- to be ^ depositedwithDelhiLegalServicesAuthorityand the matterwas adjourned to 13"^ February,2012. However,matterwas not takenup on the date fixed, that is, 13"^ February,2012. Instead,it was taken up on 13"^ March, 2012 when no one appeared on behalf of the appellant. No court notice was issued to the appellant on 13'*' March, 2012 notifying the next date of hearing as 22"^^ May, 2012. It appears that the counsel was aware of the listingofmatter. However,on 13"" March, 2012 he did not appearin time. By the time he reached Court matter had already been adjournedto 22"^^ ^ May, 2012. W Learned counsel for the appellant contends that due to inadvertence he notedthe next date ofhearingas 24"" May, 2012 insteadof 22"^* May, 2012, thus, appellantremained unrepresentedon 13^ March, 2012, resulting in dismissal of complaint. The plea taken by the appellant does not appear to be a improbable plea. It appears to be a possible plea. First of all, there is likelihood of confusionsincethe matterwas not takenup on 13^^ February,2012, that is, the date fixed in the matter on 30"^ September,2011. Secondly, on 13''' March, 2012 matter was not adjourned in the presence of complainant's counsel. In this scenario, there is every possibility of appellant's counsel noting down a wrong date of hearing. For the foregoingreasons, impugnedorder dated 22"^^ May, 2012 is set aside and the complaint is restored at its original number, subject to, however, cost of ?20,000/- (Rupees Twenty Thousand Only). Out of the cost so imposed ^10,000/- be deposited with Delhi Legal Services Authority within two weeks and remaining ^10,000/- shall be paid to respondent within two weeks. Cost, imposed upon by the Trial Court, shall also be deposited during this period. Partiesshallappearbeforethe TrialCourton 1®'November,2012. Appeal is disposed of in the above terms. OCTOBER 05,2012 ga A.KrPATHAK, J. c

$-6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.L.P. 315/2012 FIITJEE FRANCHISE NETWORK LTD. Petitioner Through: Mr. Suhail Malik, Adv. versus NEERAJ JAISWAL Respondent Through: Mr. V.K. Srivastava, Adv. CORAM: HON'BLE MR. JUSTICE A.K. PATHAK