2023 (12) TMI 1203 - HC - Indian Laws

Dishonour of Cheque - restoration of complaint - whether the negligence either on the part of the petitioner or his counsel in prosecution of the complaint can be a ground for not restoring the complaint? - HELD THAT - The present complaint pertains to cheques total amounting to Rs.89,00,000/- which were dishonoured due to insufficient funds. There is no dispute by the respondent regarding the fact that the said cheques were signed and issued by him and also regarding the dishonour of the cheques on the ground 'Funds Insufficient'. The petitioner is stated to be a qualified doctor. The petitioner was under the impression that he would be adequately represented by his previous counsel. The various orders passed by the trial court are reflecting that the petitioner and his counsel were not diligent in the prosecution of the complaint. However, mere negligence either on the part of the petitioner or his counsel in prosecution of the complaint should not be a ground for not restoring the complaint. The petitioner cannot be allowed to be suffer due to the negligence of his previous counsel. The impugned order dated 07.12.2016 passed by the trial court is set aside - the complaint is ordered to be restored to its original number before the trial court subject to the cost of Rs.25,000/- to be paid by the petitioner to the respondent on the next date of hearing before the trial court. The petitioner and the respondent are directed to appear in person before the trial court on 15.01.2024 at 2 30 p.m. for further directions.

Summary

Issues Involved:
The issues involved in the judgment include condonation of delay in filing a leave petition, dismissal of a complaint under section 138 of the Negotiable Instruments Act, 1881 for non-prosecution, and the challenge of the impugned order in a criminal appeal.

Condonation of Delay in Filing Leave Petition:
The petitioner filed a leave petition after a delay of 706 days due to not being informed by the counsel about the dismissal of the complaint under section 138 of the Negotiable Instruments Act, 1881. The petitioner, aged over 65 years, was in constant contact with the counsel who assured him of diligent representation. The delay was condoned considering the petitioner was not properly informed by the previous counsel, and the non-appearance was not deliberate.

Dismissal of Complaint for Non-Prosecution:
The complaint filed under section 138 of the Negotiable Instruments Act, 1881 was dismissed for non-prosecution by the trial court. The petitioner challenged the impugned order, stating that the previous counsel did not effectively represent him, leading to dismissal. The respondent argued that the petitioner was not represented for a significant period, affecting the proceedings. The respondent cited various hearings and judgments to support the dismissal of the complaint.

Criminal Appeal Against Impugned Order:
The petitioner filed a criminal appeal under section 378 of the Code of Criminal Procedure, 1973 to challenge the impugned order dismissing the complaint for non-prosecution. The appeal argued that the petitioner was not properly represented in the trial court, causing financial prejudice. The appeal highlighted the negligence of the previous counsel and sought restoration of the complaint.

Decision:
After considering the arguments, the impugned order dismissing the complaint was set aside, and the complaint was ordered to be restored to its original number before the trial court. The petitioner was directed to pay a cost of Rs. 25,000 to the respondent. Both parties were directed to appear before the trial court for further directions, emphasizing that the petitioner should not suffer due to the negligence of the previous counsel. The judgment was to be sent to the trial court for compliance.