ASHTECH INFOTECH PVT. LTD. Vs. HOME TRADE LIMITED

JUDGEMENT

(1.) Heard the Counsel for the Appellant. Notice could not be served upon the Respondents and therefore, the Counsel for the appellant has sought newspaper publication. Accordingly, notice through newspaper publication was given to the Respondents in the widely circulated newspaper i.e. Indian Express dated 15th April, 2013. The copy of the paper publication is on record. None appears for the respondent although served. The appellant herein is the original complainant in C.C. No. 3145/SS/2005 (Original Case No. 1093/SS/2002) which was pending before the Metropolitan Magistrate, 7th Court, Dadar, Mumbai. Counsel for the appellant submits that in fact he has prosecuted his complaint diligently and has attended the hearings before the Magistrate. On 1st October, 2007 also, he was present in the court. However, he could not remain physically present before the Magistrate and hence, the Metropolitan Magistrate has dismissed the complaint for want of prosecution and the accused is acquitted.

(2.) The Counsel for the appellant submits that in fact all efforts to serve upon the original accused have failed. Dismissal of the complaint for non-prosecution is unjustified as he would suffer irreparable loss. The amount of the cheque being to the tune of Rs. 1,62,68,039/- and Rs. 25 Lakhs, the complainant has to go through the ordeal of the proceedings in the absence of the accused. The dismissal of the complaint would therefore, result into miscarriage of justice. The Counsel for the appellant has placed on record the copy of the roznama which shows that the accused has not remained present before the Court since 23rd July, 2003, whereas the complainant has attended most of the dates before the Metropolitan Magistrate. It is pertinent to note that the accused has never remained present before the Metropolitan Magistrate and therefore, plea could not be recorded. Taking into consideration the submissions of the Counsel and the evidence on record, this Court is of the opinion that it is necessary to lead his evidence and prove his case. In these circumstances, dismissal of the complaint would result into miscarriage of justice and, hence, the Metropolitan Magistrate shall conduct the trial of the said case in accordance with law. Hence, the matter is being remanded back to the Metropolitan Magistrate's Court, Dadar. The complaint is restored to its original status. The Metropolitan Magistrate seized with the matter shall make endeavour to conclude the trial within 9 months from the date of receipt of this order. In view of the above, appeal stands disposed of accordingly.