ESCORTS LTD. Vs. SINGH MOTORS

JUDGEMENT

(1.) THIS appeal is directed against the order dated 01.03.211, whereby the complaint was dismissed for non -prosecution. A perusal of the record would show that on 27.05.2009, the learned counsel for the complainant was present, but no one was present for the respondent/accused. In fact, the respondents/accused persons never appeared before the Trial Court at any point of time. The counsel appearing for the respondents submits that they had no occasion to appear since the Court summon was not served upon the accused persons/respondents. When the matter was received in the Transferee Court, notice was issued to the complainant. For two dates, the notice could not be served. The notice was served for the first time for 01.03.2011 when there was no appearance on behalf of the complainant and, therefore, the complaint was dismissed for non -prosecution.

(2.) THE learned counsel for the appellant submits that the Court notice was issued to the appellant -company through Shri Anoop Roop Chaudhary, who had filed the complaint on behalf of the appellant - company, but at the time the notice was served, Mr Chaudhary had already left the services of the appellant -company. He has pointed out that when this matter was listed before Shri S.K. Gupta, Metropolitan Magistrate on 27.05.2009, it was adjourned to 21.05.2010. Though the date of listing before Shri S.K. Gupta Metropolitan Magistrate is stated to be 02.07.2009 in para 3 of the affidavit, that seems to be a typographical error considering the matter was listed before Shri S.K. Gupta on 27.05.2009 and not on 02.7.2009. The matter was never taken up by the learned Metropolitan Magistrate on 21.05.2010, presumably because it was in the process of being transferred to another Court by that time. The matter was taken up by the Transferee Court for the first time on 25.05.2010 when it was adjourned, first to 10.09.2010 and then to 20.12.2010 and lastly to 01.03.2011 and the Court notice on the appellant -company was served for 01.03.2011 on 01.02.2011.

(3.) CONSIDERING that this matter was not taken up even by Shri Arun Verma, Metropolitan Magistrate on 21.05.2010, the deposition of Mr Vidhu Upadhyaya cannot be stated to be incorrect. The contention of Mr Sanjay Gupta, counsel for the respondents is that none of the Magistrates mentioned in para 4 of the affidavit were handling the cases under Section 138 of Negotiable Instruments Act at Dwarka Courts and this can be confirmed from an office circular which is filed on the record, the affidavit filed by Mr Vidhu Upadhyaya prima facie is incorrect. In my view, I need not go into this aspect of the matter for the simple reason that the information which Mr Vidhu Upadhyaya claims to have gathered at Karkardooma Courts on 21.05.2010 was not based upon any office circular, but was based upon what he was verbally told at Dwarka Court on that date. It is quite possible that he was not given correct information with respect to the Courts which was dealing with such matters and that is why he could not reach the concerned Court on that date. Be that as it may, considering that this matter was not listed before any Court on 21.05.2010, the question becomes immaterial. The Court needs to keep in mind that the complaints are filed with intent to pursue them and to take them to their logical conclusion and not for getting them dismissed in default or for non -prosecution. Had the concerned person in the appellant company been aware of the notice received for 01.03.2011, there could be no reason for him not to appear and thereby allow the complaint to be dismissed for non -prosecution. Therefore, it could not have been the intention of the appellant -company to let the complaint dismissed for non -prosecution.