ASHOK KALRA Vs. STATE OF DELHI

JUDGEMENT

(1.) This appeal has been preferred against the order of learned Metropolitan Magistrate dated 20th April, 2006 when none appeared for the complainant in the complaint case and the learned Metropolitan Magistrate after giving repeated calls, dismissed the complaint in default at 2.20 p.m. It is submitted that the case was fixed on 19th September, 2005, and on that day complainant produced pre-summoning evidence and advanced arguments and the order was reserved. On the following day when the counsel for the appellant checked up the order, he was informed that summoning order was passed and next date was fixed as 25th April, 2007. On 25th April, 2007 he did not find the matter in the list and on enquiry he learnt that the matter was fixed on 20th April, 2006 and it was dismissed in default on that day. In order to show his bona fide the counsel has attached the photocopies of the pages of diary. It is submitted that there was no fault on the part of the complainant in not appearing on 20th April, 2006 due to wrong noting of date.

(2.) It is very surprising in almost all cases where complaints are dismissed in default, excuse of noting a wrong date is pleaded. When an order is reserved by Trial Court a date of announcement of order is given by the Trial Court. No order is reserved by the Trial Court without giving a date of announcement. The plea taken by the appellant on the face of it is unbelievable. Even if it is assumed that he had made an enquiry about the date and was informed that summoning order has been passed, he was supposed to file process fee for the summoning of accused and for that he would have to inspect the file and mention correct date for which accused has been summoned. Moreover, the date of one and half year would have raised a doubt in his mind about the correctness of date and it was duty of the counsel for the appellant to inspect the case file and see what was the order passed and what was the date. Filing of pages of diary makes no sense. Merely noting next date after passing of summoning order by trial Court also makes no sense because once summoning order is passed, complainant is supposed to find out as to for what offence accused has been summoned and he is to take steps for summoning of accused i.e. to file process fee, copies of complaint and documents etc. Nothing is mentioned in the appeal regarding all this. Noting of wrong date has become a common excuse in all cases where complainant and counsel do not appear on date fixed.

(3.) Although there seems to be no valid excuse for non appearance before the Court however, considering that the complainant should not suffer from the faults of his counsel, the order of the Metropolitan Magistrate is set aside and the complaint is restored to its original number subject to cost of Rs.20,000/- to be deposited in Delhi High Court Legal Services Committee. The appellant shall appear before the Trial Court on 2nd November, 2007 and show the receipt of payment. The appeal stands disposed of.