ESCORTS LTD Vs. RAMA MUKHERJEE

JUDGEMENT

(1.) The present appeal is filed by the appellant under Section 378 read with Section 482 Cr.P.C. praying inter alia for setting aside the order dated 29.1.2010 passed by the learned MM, Karkardooma Court dismissing for non-prosecution, the Criminal Complaint No.1459/2006 filed by the appellant/complainant against the respondent/accused under Section 138 of the Negotiable Instruments Act (for short 'the Act').

(2.) The submission of the counsel for the appellant is that the appellant/complainant filed a Complaint under Section 138 of the Act against the respondent/accused, alleging dishonour of a cheque dated 25.2.2004, for a sum of '15,00,000/- issued by the respondent/accused in favour of the appellant/complainant. As per the copy of the order sheet placed on the record, vide order dated 26.6.2004, the learned Metropolitan Magistrate summoned the respondent/accused for 28.8.2004. However, despite orders passed thereafter by the learned Metropolitan Magistrate on different dates, directing issuance of process for summoning the respondent/accused, process fee was not filed by the appellant/complainant. Vide order dated 24.4.2009, costs of '100/- were imposed on the appellant/complainant while directing process to be issued to the respondent/accused, in terms of the earlier orders, returnable for 17.9.2009. On 17.9.2009, the summons sent to the respondent/accused were received back unserved, hence fresh service was directed for 2.12.2009. On 2.12.2009, as steps were not taken by the appellant/complainant to serve the respondent/accused, further opportunity was granted to the appellant/complainant to serve the respondent/accused, returnable on 29.1.2010, subject to payment of additional costs of '500/-. On 29.1.2010, the learned Metropolitan Magistrate noted that the appellant/complainant had neither deposited the costs with the Legal Aid, nor taken any steps to serve the respondent/accused. As a result, the complaint was dismissed for non-prosecution.

(3.) Counsel for the appellant/complainant states at the outset, that the costs imposed vide order dated 2.12.2009 were deposited in the Legal Aid after passing of the impugned order dated 29.1.2010. She states that steps could not be taken by the appellant/complainant to serve the respondent/accused after 17.9.2009, for the reason that the Authorized Representative of the appellant/complainant left its services in November 2009. Another employee was engaged in his place and he was appointed as Authorized Representative of the appellant on 4.1.2010 and thereafter power of attorney was executed in his favour appointing him as the Authorized Representative of the appellant/complainant, to appear on its behalf in the present complaint.