Rajbir v. State & ANR

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IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.L.P. 388/2016 RAJBIR Petitioner Through : Mr. Rajesh Yadav, Adv.

+ versus STATE & ANR Respondents Through ; Mr. Tarang Srivastava, APP for R-1. Mr. Rajeev Saraswati, Adv. for R-2.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

ORDER

o/o 28.11.2016 Leave to appeal granted. Registry to register the petition as an appeal. Crl.A. ///y /2016 (to be numbered) Arguments heard.

Appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1887 ('the Act' for short). After recording pre-summoning evidence vide order dated ?"■ January, 2015, trial court summoned accused/respondent under Section 138 of the Act. After service, respondent appeared before trial court on 21" April, 2015. Thereafter, notice under Section 138 of the Act was served upon the respondent on 8"" July, 2015 and matter was listed for complainant's evidence on 22"" July, 2015. On 22"" July, 2015, appellant examined himself as CW-1 and thereafter matter was nature Not Verified gitally Signed AMULYA

adjourned Respondent filed the application for recalling CW-1, which was taken up on 27^^ April, 2016. On 27* April, 2016, trial court fixed 4* May, 2016 for recording the statement of accused., On 4* May, 2016, neither appellant nor respondent appeared in person nor were represented through lawyers. Consequently, complaint has been dismissed in default. Leamed'counsel for appellant has contended that on 27 April, 2016, appellant had noted the next date of hearing as 5* May, 2016. Accordingly, appellant remained unrepresented on 4* May, 2016. It is further submitted that even respondent had not noted the next date of hearing as 4* May, 2016 and for this reason respondent also remained unrepresented. Photocopy of case diary maintained by learned counsel for appellant has been placed on record. In the diary, next date of hearing has been recorded as 5 May, 2016.

\ n ^ '

Plea taken by appellant, that wrong date of hearing was recorded, is a probable plea and there is no reason to discard the same. More so, on, previous occasions, appellant had been pursuing the matter diligently and appearing in court.

, , 'For the foregoing reasons, impugned order dated 4* May, 2016, is set aside and complaint is restored to its original number.

Appeal is disposed of in the above terms. Parties shall appear before the trial court on 15 December, 2016.

NOVEMBER 28, 2016/dk ATHAK, J.