PLAZA CABLES ELECTRIC PVT. LTD. Vs. KAMAL KHURANA

JUDGEMENT

(1.) THE appellant in this appeal is aggrieved by an order dated 13.01.2006 passed by Mr. Manoj Kumar, MM, Rohini Court, New Delhi in Criminal Complaint No.216/2003 under Section 138 of Negotiable Instruments Act, 1881 dismissing the said complaint in default for non-prosecution.

(2.) ON the date the complaint under Section 138 of Negotiable Instruments Act was dismissed in default for non-prosecution, it was listed for arguments on charge. Before the date the said complaint was dismissed in default, the said complaint was pending in Tis Hazari court where the last date was 13.05.2005. On establishment of a new court complex of the District Court at Rohini, the aforementioned complaint was transferred from Tis Hazari to Rohini court and was to be taken up for hearing there on 13.01.2006. The lawyers were agitated by establishment of new court complex at Rohini and at that time the lawyers remained on strike for a long time. Consequent upon transfer of complaint case of the appellant from Tis Hazari to Rohini court, the appellant was required to appear before the Rohini court on date fixed i.e. 13.01.2006. Since nobody appeared on his behalf on that day, the complaint was dismissed in default vide impugned order. The reasons for non appearance given by the appellant are stated in paras 7, 8 & 9 of the Memorandum of Appeal and the same are reproduced hereinbelow:--

(3.) THE learned counsel appearing on behalf of the respondent has contended that he had carried out the inspection of the record of the court below and on inspection, he found that the file of the complaint case in question was transferred from Tis Hazari to Rohini on 06.01.2006 and therefore the appellant ought to have appeared before the trial judge at Rohini court on 13.01.2006. A perusal of the impugned order which is at page 24 of the appeal paper book reveals that the complaint was dismissed by the Judge at Rohini at 12:30 PM on 13.01.2006. However, the reason for non appearance given by the appellant as reproduced hereinabove would show that the appellant came to know that his case was transferred from Tis Hazari to Rohini at 2 PM and therefore, he has adequately explained the reason for his non appearance before Rohini court by the time his complaint was dismissed in default. I am of the view that the appellant has made out a case for restoration of. his complaint. Even otherwise, I am of the view that the technicalities should not block the road for justice. There is no adjudication of rights and liabilities of the parties on merits. No prejudice shall be caused to the respondent in case the parties are heard on merits of the grievance raised by the appellant in his complaint under Section 138 of the N.I. Act.