Mukesh Sharma v. State & Anr

ORDER %

06.11.2012 Crl.M.A.2142(Delav) For the reasons explained in the application, the delay is condoned. Application is disposed of. CrI.L.P.51/2010 Leave to appeal is granted. Registry to register this petition as an appeal. Crl.A.No. / 3 / / /2012(to be numbered) Appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). After recording pre-summoning evidence respondent no.2 (accused) was summoned by the trial court. During the pendency of trial appellant remained unrepresented before the court on November, 2009, consequently, complaint has been dismissed in default. That is how, appellant is before this Court by way of present appeal. It is contended that on 20"" November, 2009 appellant could not appear in court as he was unwell. Counselfor the appellantwas not in town that day. Accordingly, appellant remained unrepresented on 20 November, 2009. Copy of the medical certificate issued by Dr.N.K.Mittal (Ghaziabad) has been placed on record which shows that appellant was unwell and was advised bed rest. Non-appearance was neither intentional nor willful but was for the reasons beyond the control of appellant. Medical certificatesupportsthe versionofthe appellant. Since on 20^ November, 2009 appellant was unwell and his counsel was out of station he remained ^ unrepresented. Otherwise,endeavourofthe Court shouldbe to disposeof the matter on merits instead of dismissal thereof on technicalities. As regards inconvenience caused to the counsel for the respondent no. 2 he can be compensated in terms of cost. For the foregoing reasons, impugned order dated 20''' November, 2009 is set aside and the complaint is restored to its original number subject ,th to, however,costof Rs.25,000/-,outof whichRs.10,000/-be depositedwith the Delhi Legal Services Authority and the remainingamount be paid to respondent. Partiesare directedto appear before the trial court on 3'^'' December, 2012. Appeal is disposed of in the above terms. NOVEMBER 06, 2012 ps A.ICTATHAK, J [5

$-4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.L.P. 51/2010 MUKESH SHARMA Petitioner Through Mr.Shyam Dutt, Adv. Mr.Sanjev Kumar Dhaka, Adv. versus STATE & ANR Respondent ^ Through Ms.FizaniHusain,APP. Mr.Dinesh Kr.Tiwari, For R-2 CORAM: HON'BLE MR. JUSTICE A.K. PATHAK