2020 (2) TMI 411 - HC - Indian Laws

Dishonor of Cheque - offences u/s 138 of NI Act - complaints filed by the petitioner company against respondent no.2 were dismissed due to non-appearance and non-prosecution on behalf of the petitioner company - HELD THAT - The present petitions were filed on 23.01.2017. The same were also accompanied by applications under Section 378(3) of the CrPC read with Section 482 of the CrPC, seeking leave to file appeals. The learned counsel appearing for respondent no.2 is correct that an appeal could not be filed without seeking special leave to appeal under Section 378(4) of the CrPC. Further, the caption of the applications seeking leave to appeal are also erroneous inasmuch as, the petitioner has captioned those as applications under Section 378 (3) of the CrPC. It is well settled that the Courts would examine the substance in preference over form and therefore, this Court is unable to accept that the present petitions should be dismissed only for the reasons that they are defective in their form. The petitioner ought to have styled the present petitions as application for leave to appeal. However, this Court does not consider it apposite to dismiss the present petitions on this ground. This Court is also of the view that the petitioner has adequately explained the delay in filing the present petition - This Court is of the view that the said explanation provided by the learned counsel for the petitioner ought not to be rejected. This is considering that the petitioner has been diligently pursuing its complaint and had promptly filed the process fee for issuance of NBWs as well. The present appeals are allowed and the complaints are restored on the board of the concerned MM at the same position as obtaining on 21.02.2015.

Summary

Issues involved:
1. Dismissal of complaints under Section 138 of the Negotiable Instruments Act, 1881 due to non-appearance and non-prosecution.
2. Maintainability of the appeal against the order dated 21.02.2015.
3. Explanation for the non-appearance of the petitioner's counsel before the Trial Court.
4. Delay in filing the present petitions seeking leave to appeal.
5. Interpretation of the order dated 21.02.2015 as an order of acquittal.
6. Validity of the explanation provided for the incorrect noting of the next date of hearing.

Detailed analysis:
1. The petitioner filed complaints under Section 138 of the NI Act, which were dismissed for non-appearance and non-prosecution. The petitioner explained the non-appearance as an inadvertent error by their counsel in noting down the next hearing date incorrectly. The High Court observed that the petitioner had been diligently pursuing the complaints, and the explanation for non-representation was accepted as persuasive.

2. The High Court addressed the issue of maintainability of the appeal against the order dated 21.02.2015. The respondent argued that the appeal was not maintainable without special leave. However, the Court considered the substance over form and granted leave to appeal, directing the renumbering of the petitions as appeals.

3. The delay in filing the present petitions seeking leave to appeal was explained by the petitioner as pursuing an incorrect remedy initially. The Court accepted the explanation and condoned the delay, considering the petitioner's actions after realizing the incorrect remedy pursued earlier.

4. The interpretation of the order dated 21.02.2015 as an order of acquittal was contested. The Court referred to previous judgments and held that an order of discharge under Section 256 of the CrPC could be considered as an order of acquittal. Therefore, the petitioner was granted leave to appeal against the impugned order.

5. The validity of the explanation provided for the incorrect noting of the next date of hearing was also examined. The respondent argued against accepting the explanation, but the Court found the petitioner's explanation reasonable, especially considering the diligent pursuit of the complaints and the prompt actions taken in filing necessary documents.

6. In conclusion, the High Court allowed the appeals, restoring the complaints on the board of the concerned MM at the same position as of 21.02.2015. The concerned parties were directed to appear before the concerned MM on a specified date.