2019 (8) TMI 1894 - HC - Indian Laws

Dishonour of Cheque - insufficient funds - non-appearance on behalf of petitioner - none appeared before the learned Metropolitan Magistrate at Rohini District Court as the advocates were on strike - HELD THAT - Considering the explanation rendered by the petitioner that on 23rd July, 2015 because of the strike of the lawyers neither the lawyer nor the complainant could appear and the clerk of the counsel for the complainant wrongly noted the next date as 1st December, 2015 and thus they could not appear before the Trial Court on 19th November, 2015 and that on 1st December, 2015 when the complainant along with counsel appeared before the Court he came to know that the complaint had already been dismissed for non-prosecution as also the fact that the counsel for the petitioner was present before the court on each and every date, this court deems it fit to restore the complaint to its original position subject to cost. The impugned order dated 19th November 2015 dismissing Complaint Case which was pending in the Court of learned Metropolitan Magistrate North Rohini court is restored to its position subject to the petitioner paying a cost of ₹5,000/- to the respondent on the date before the learned Trial Court which is fixed as 2nd September, 2019 when the petitioner with his counsel and respondent with his counsel will be present in Court. Appeal disposed off.

Summary

Issues involved:
1. Delay in filing leave to appeal petition.
2. Dismissal of complaint under Section 138 of the Negotiable Instruments Act, 1881.
3. Restoration of complaint to original position.

Issue 1: Delay in filing leave to appeal petition
The petitioner had pursued the wrong remedy of filing an appeal before the Additional Sessions Judge, which was dismissed. Due to this error, there was a delay in filing the leave to appeal petition. The court condoned the delay based on the reasons stated in the application, allowing the petitioner to proceed with the appeal.

Issue 2: Dismissal of complaint under Section 138 of the Negotiable Instruments Act, 1881
The petitioner's complaint under Section 138 of the Negotiable Instruments Act, 1881 was dismissed in default for non-appearance, leading to the respondent's acquittal. The petitioner provided sufficient cause for the non-appearance, and the court granted leave to appeal after perusing the record. The court deemed it fit to grant leave to appeal and disposed of the petition accordingly.

Issue 3: Restoration of complaint to original position
The facts leading to the complaint involved a friendly loan extended by the petitioner to the respondent, which was not repaid as agreed upon. Despite extensions and failed attempts to clear the dues, the respondent issued a cheque that bounced due to insufficient funds. Legal notices were sent, but the respondent failed to make the payment, resulting in the complaint being filed. The court considered the explanation provided by the petitioner regarding non-appearance due to lawyer strikes and clerical errors. The court restored the complaint to its original position, subject to the petitioner paying a cost to the respondent. The order dated 19th November 2015, dismissing the complaint, was restored, and a specific date for both parties to appear in court was set for further proceedings.

This judgment addresses the issues of delay in filing the leave to appeal petition, the dismissal of the complaint under Section 138 of the Negotiable Instruments Act, 1881, and the subsequent restoration of the complaint to its original position based on the explanations and circumstances presented during the legal proceedings.