ESCORTS LTD. Vs. PRAKASH CHAND PATIDAR

JUDGEMENT

(1.) THE appellant has filed the present appeal to challenge the legality and correctness of order dated 28.06.2011 of learned Metropolitan Magistrate whereby the complaint case under Section 138 Negotiable Instruments Act filed by the appellant was dismissed for non -prosecution. The appeal was admitted and notice was given to the respondent who put appearance through counsel. However, no response to the appeal was filed.

(2.) PERUSAL of the file reveals that complaint case under Section 138 Negotiable Instruments Act was filed against the respondent before the learned Metropolitan Magistrate. The complainant tendered his evidence by way of affidavit and cognizance was taken on 21.02.2006. The respondent failed to put appearance despite issuance of process number of times. Finally, non -bailable warrants were ordered to be issued to procure respondent's presence which remained unexecuted. The proceedings under Section 138 Negotiable Instruments Act were earlier pending before Karkardooma Courts. However, vide order dated 18.05.2010 the parties were directed to appear before the concerned Court at Dwarka. Pursuant to Court notice issued to the appellant, Sh.Satish Kashyap, Advocate appeared on 07.06.2011 and sought some time to get instructions from the complainant to withdraw the case. The matter was listed for 28.06.2011. On that day, none appeared on behalf of the complainant and the case was dismissed for non -prosecution. Aggrieved by the said orders, the appeal has been filed. The complainant has filed an affidavit of Keshav Sharma, Authorized Representative of the complainant to show the circumstances because of which he could not put appearance before the Trial Court on 28.06.2011. There are no reasons to disbelieve the contents of the affidavit. The respondent did not file any counter affidavit. It is stated that the appellant is interested to pursue the case. Perusal of the file reveals that the complainant was diligent in pursuing the complaint case from the very inception and on that particular date, the complainant could not appear. No effective proceedings were to be conducted on that day and the presence of the complainant as such was not dispensable. The respondent had not put appearance before the Trial Court despite issuance of non -bailable warrants.