RAMESH R JAIN Vs. DATAPRO INFORMATION TECHNOLOGY LTD

JUDGEMENT

(1.) Rule. Returnable forthwith.

(2.) In this petition the validity of the order passed by the learned Additional Chief Metropolitan Magistrate, 9th Court, dated 4/4/97 is questioned by the petitioner/3rd accused.. The short facts relevant for the purpose of disposal of this petition can be stated as follows:

(3.) On 18/1/1995 the first respondent complainant filed a complaint against the petitioner and others alleging that a cheque for Rs.32,16,222/- issued by the company, was returned unpaid and further even on subsequent demand, the said company failed to pay the amount. The learned Magistrate on the basis of the complaint and the statement of the first respondent on 5/12/1996 and 22/2/1996 ordered issue of the process against the petitioner under section 138 of the Negotiable Instruments Act. It is seen that thereafter the matter came to be adjourned on several occasions and ultimately it is seen from the Roznama that when the matter was taken up on 4/4/1997 the complainant was absent, but however, his advocate was present. The accused 1 and 2 were also present. As far as the present petitioner who is the 3rd accused in the case is concerned, he was not present, but an application for exemption for his appearance was made and on that the learned Magistrate passed the impugned order. In the impugned order the learned Magistrate has observed that the accused was deliberately avoiding trial and taking that view the learned Magistrate allowed the application for his exemption for the day subject to payment of cost of Rs.33,000 and out of which Rs.16,500 to be given to the complainant. The learned Magistrate has indicated in the order that as to how he arrived at the figure of Rs.33,000/-. The learned Magistrate has calculated simple interest at the rate of 1% p.m. on the amount of Rs.33 lakhs (which according to the complainant is due to him from the accused).