Mohd Shafiq v. State (NCT Of Delhi) & ANR

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.L.P. 525/2016 MOHDSHAFIQ .

Petitioner Through: Mr. Ghanshyam Yadav and Ms.

Monika, Advs.

versus V STATE (NCI OF DELHI) & ANR Respondents Through : Dr. M. P. Singh, APP for R-1.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

ORDER

% 02.02.2017 CRL.L.P. 525/2016 Despite service, no one appears for the respondent no.2. Leave to appeal granted. Registry to register the petition as an appeal. Crl.A. No./^^/2017 (to be numbered) Since a short point is involved, appeal is being disposed of after hearing the arguments of learned counsel for the appellant and learned Additional Public Prosecutor for the State.

Appellant filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent no.2, before the trial court. Vide order dated 14^'' July, 2016, complaint has been dismissed in default and respondent no.2 has been acquitted under Section 256 Cr.P.C. By:AMULYA

Learned counsel for the appellant submits that complaint case was transferred to the Court of Shri Dinesh Kumar, MM(T), North-East, Karkardooma Court,. Delhi pursuant to a letter No.ll'18-30/Judl./NE/KKD/Delhi/2016 dated 16.02.2016 of Learned District & Sessions Judge, North-East, KKD Courts, Delhi from the earlier Court. Transferee court took . up the matter on 18^^ May, 2016 and ordered for issuance of fresh summons to i"

respondent no.2, returnable for .25'*' July, 2016 on filing of PF through Speed Post within seven days,. It is submifred that appellant had noted the next date of hearing as 25.^'' July, 2016. However, appellant's counsel was not present when the date was given and he had noted down the date. It is contended that after the date of 25"^ July, 2016 was given, respondent no.2 (accused) appeared in Court along with his counsel and at their request matter was fixed for 3'''^ June, 2016 instead of 25'^ July, 2016.

Appellant remained under the impression that matter would be taken up on 25^'' July, 2016, therefore, did not appear m Court on 3'"^ June, 2016 and July, 2016 when the matter was taken up by the Court. Though the date, that is, 3'''' June, 2016 was not notified to the appellant. It is submitted that on 25^'' July, 2016, counsel did not find the matter in the Cause list. Accordingly, he made enquiries and came to know that matter was already dismissed in default on 14 July, 2016. I have perused the order dated 18^'' May, 2016. It is clear that transferee

M court had issued summons to respondent no.2, returnable for 25^*^ July, 2016. It appears that subsequently respondent no.2 had appeared in Court along with his counsel and at their request date was fixed as 3'^'^ June, 2016 for appearance of appellant and further proceedings. On IS'*" May, 2016, counsel was not present when the matter was taken up. In such a scenario, there is every possibility that '

counsel had earlier noted down the. date as 25^^ July, 2016. No court notice was issued to appellant or his counsel for their appearance on S"'* June, 2016 and on 14''" July, 2016. The plea taken by the appellant that he remained unrepresented on 14'*^ July, 2016 since next date of hearing was noted by his counsel as 25^'' July, 2016, is a probable plea. It is trite to say that appellant was not going to gain any benefit from his non appearance, more so he had been earlier pursuing the matter diligently. ^ For the foregoing reasons, impugned order dated 14'*^ July, 2016 is set aside. Complaint case is restored to its original number. Parties to appear before the trial court on 10'*^ March, 2017. - Appeal is disposed of in the above terms.'

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A.K. PjATHAK, J.

FEBRUARY 02, 2017/dk