Mata Vaishno Finsec Services v. Siraj Khan

$-44 & *

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.L.P. 426/2014 MATA VAISHNO FINSEC SERVICES Through:

Mr.Madhu Petitioner Sudan Bhayana, Advocate.

versus Respondent SIRAJKHAN Through:

None.

AND + CRL.L.P. 435/2014 MATA VAISHNO FINSEC SERVICES Through:

Mr.Madhu Petitioner Sudan Bhayana, Advocate.

versus Respondent SIRAJ KHAN Through:

None.

CORAM:

HON'BLE MS. JUSTICE PRATIBHA RANI %

ORDER

04.04.2016 CRL.L.P. No.426/2014 CRL.L.P. No.435/2014 1.

Leave granted. The Registry is directed to register the petitions as appeals.

2.

These two appeals have been preferred by the appellant impugning Crl.L.P. Nos.426 cfe 435 of 2016 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing.

the order dated 03.05.2014 whereby the two complaint cases filed under Section 138 of Negotiable Instrument Act read with Section 420 IPG have been dismissed for non-prosecution and respondent Siraj Khan has been acquitted of the charges levelled against him. 3.

Notice was issued to the respondent Siraj Khan several times but the process received back unserved with the report that he is not residing at the given address.

4.

I have heard learned counsel for the appellant and carefully gone through the record.

5.

The two complaint cases filed by the appellant under Section 138 of Negotiable Instrument Act read with Section 420 IPG have been dismissed by the learned MM by passing the identical orders dated 03.05.2014 which read as under;

'03.05.2014

Present:

None for the complainant.

Accused in person.

Be awaited.

Sd/- MM/Dwarka 03.05.2014 12.30 pm Present :

None for the complainant.

Accused in person.

Be awaited.

Sd/- MM/Dwarka 03.05.2014 2.00 pm Present :

None for the complainant.

Accused in person.

Crl.L.P. Nos.426 c& 435 of 2016

Despite several calls since morning, none has appeared on behalf of the complainant. No intimation on behalf of the complainant has also been received.

Keeping in view the fact that none has appeared on behalf of the complainant, accordingly, present complaint case is dismissed for nonprosecution. Accused stands acquitted of the charges levelled against him. His bail bond stands cancelled and surety stands discharged. Case fde be consigned to record room.

Sd/- MM/Dwarka 03.05.2014 6.

Mr.Madhu Sudan Bhayana, Advocate for the appellant has submitted that he was diligently prosecuting the complaint cases right from the stage of their institution and it was due to wrong noting of the date in his diary that he could not appear before the learned MM on 03.05.2014 which resulted into dismissal of both the complaint cases for non-prosecution as well acquittal of the respondent. Alongwith the appeal, the learned counsel for the appellant has also annexed with the petition the photocopy of his diary th for the relevant dates of hearing fixed before the learned MM i.e. for 13 March, 2014, 3'''^ May, 2014 and 5"" May, 2014.

Learned counsel for the appellant submits that in these cases the date has been wrongly noted as 5^' May, 2014 instead of 3'"'^ May, 2014 and due to this reason he could not appear before the learned MM on 3'^'' May, 2014. It was only on 5**^ May, 2014 when he alongwith the complainant appeared before the learned Trial Court, he came to know about the dismissal of both the complaint cases for non-prosecution and acquittal of the respondent on 3'"'^ May, 2014. 7.

Learned counsel for the appellant has also produced his original diary Crl.L.P. Nos.426 &

which has been perused. He has prayed for setting aside the order dated B*" May, 2014 and restoration of the complaint cases as his non-appearance on the relevant date was not intentional but due to wrong noting of the date. 8.

Considering the facts and circumstances of the case and that it was due to wrong noting of the date of hearing that the complainant or his counsel could not appear before the learned Trial Court on 3 May, 2014 when both the complaint cases were dismissed for non-prosecution, the litigant should not be made to suffer for the lapse on the part of the counsel. Hence, the order dated B""" May, 2014 passed in both the complaint cases are set aside. The Complaint Cases restored to their original numbers. The parties are directed to appear before the concerned Court on 2H^ April, 2016. 9.

Both the appeals are allowed.

10. A copy of this order be sent to the concerned Court for information and compliance.

As prayed, copy of the order be given dasti to learned counsel for the appellant.

Crl.M.A.No.4615/2016 in Crl.L.P. No.426/2014 Crl.M.A.No.4614/2016 in Crl.L.P. No.435/2014 Dismissed as infructuous.

>RATIBHA RANI, J.

APRIL 04,2016 'st'

Crl.L.P. Nos.426 & 435 of 2016 Toge 4 of 4