SHIV KUMAR Vs. MOHD SAGHIR

JUDGEMENT

(1.) - This appeal by special leave is directed against the judgment dated May 20, 1996 passed by Shri Sanjay Garg, Metropolitan Magistrate, Delhi.

(2.) FACTS giving rise to the present appeal, in brief, are that Shiv Kumar, appellant, filed a complaint under Section 138 of the Negotiable Instruments Act against Mohd. Saghir, respondent No. 1 and M/s. Mohd. Rafiq Mohd. Shafiq Company, respondent no. 2, on November 11, 1991 and vide order dated July 4, 1994, both these respond ents were summoned as accused for September 9, 1994 by the trial Magistrate. Re spondent No. 1 who appeared on September 9, 1994 was admitted to bail. On that date itself appellant filed an application under Section 319 Cr. P. C. and on that application mohd. Atiq, Mohd. Abid, Mohd. Javed and Mst. Jamila Khatoon, respondents 3 to 6 being partners of respondent No. 2 were further ordered to be summoned as accused for March 2, 1995 by the trial Magistrate vide order dated January 16, 1995. Thereafter on February 14, 1996 respondent No. 1 put in appearance along with Shri m. P Singh, Advocate and the latter made a statement that he will be producing the remaining respondents on the next date of hearing and the case was postponed to march 27, 1996 for appearance of respondents 3 to 6. On that date respondents 3 and 5 appeared before the trial Magistrate and they too were admitted to bail. An application for seeking exemption was filed on behalf of respondents 4 and 6 through counsel and the same was allowed and the case was posted for April 22, 1996 for appearance of respondents 4 and 6. On April 22, 1996 as respondents 4 and 6 did not appear, non-bailable warrants were ordered to be issued against them for May 20, 1996. Thereafter on the application filed on behalf of respondents 4 and 6 for cancellation of non- bailable warrants, the case was taken up on April 23, 1996 and the order for issuing of non-bailable warrants against both of them was recalled and they were admitted to bail. However, on May 20, 1996 when respondents 1 and 3 to 6 were present and the complainant was absent, the case was ordered to be taken up again at 2 PM and at 2. 20 PM following order was passed by the trial Magistrate : "present : None for the complainant. All the accused are present. The presence of the complainant is required as he was supposed to supply copies of the complaint to the accused. Complaint is dismissed in default. Accused are discharged. File be consigned to record room. " 2. It is this order which is under challenge in this appeal.

(3.) CONTENTION advanced by Shri G. D. Gandhi appearing for the appellant was two fold. First, that the appellant mistook the next date of hearing on April 22, 1996 as May 22, 1996 instead of May 20, 1996 and on account of that bona fide mistake neither the appellant nor his counsel appeared on May 20, 1996 when the impugned order was passed. In support of this contention Shri Gandhi relied on the case diary which is maintained by him in the normal course of his professional work besides bringing to our notice the fact that the complaint has been pending for nearly four and a half years and the appellant has been throughout appearing regularly before the trial magistrate prior to May 20, 1996. Second contention of Shri Gandhi, learned counsel for appellant is that in view of the provision contained in Section 256 Cr. P. C. the trial magistrate in the circumstances of the case was not justified in dismissing the com plaint in default of appearance of the complainant.