Delhi District Court
M/S Shri Ram Transport Finance Company ... vs Harjinder Singh (Borrower) on 27 November, 2020
CA/08/20
IN THE COURT OF SHRI DEEPAK JAGOTRA,
PRINCIPAL DISTRICT & SESSIONS JUDGE, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CA/08/20
In the matter of;
M/s Shri Ram Transport Finance Company Ltd.
Through Its Authorized Representative Mr. Mani Kishore,
Branch Office at: C52, 2nd Floor, Sashi Garden,
PocketV, Mayur Vihar Phase 1,
Delhi110091. ..... Appellant
Versus
1. Harjinder Singh (Borrower)
R/o H. no. B49, Mandawali Fazalpur,
Mayur Vihar Public School,
Delhi110092.
2. Nafees Ahmad (Guarantor)
S/o Shameem Ahmad,
R/o H. no. D251,802, West Vinod Nagar,
Shri Ram Chowk,
Delhi110092.
..... Respondents
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CA/08/20
Date of Institution:09012020
Reserved for order on:27112020
Order announced on:27112020
ORDER
1. In this Criminal Appeal under Section 398 Cr.P.C., appellant has challenged the order passed by the Court of Ms. Shivali Sharma, learned CMM, East District, Karkardooma Courts, Delhi whereby the Trial Court had dismissed in default the complaint of the complainant (appellant herein) for non prosecution and non appearance.
2. I have heard learned counsel for the appellant and minutely gone through the record of the case.
3. Learned counsel for the appellant has submitted that due to noting down of wrong date appellant could not appear before the Trial Court. Learned counsel further submits that he has noted down the date as 28.11.2019 instead of 18.11.2019 and when he reached the court on 28.11.2019 he found that his matter has already been dismissed in default for non prosecution vide order dated 18.11.2019. Page No. 2 /5
CA/08/20 It is further prayed that the order dt.18112019 may be set aside.
4. On the other hand, request has been made on behalf of respondents for the dismissal of the appeal.
5. At the outset, it is pointed out that appellant had filed a complaint case. The said case was fixed for hearing on 18.11.2019 but the appellant could not appear before the learned Trial Court on the said date despite waiting since morning. Thereafter, learned Trial Court had dismissed in default the complaint for non prosecution and file was consigned to Record Room. Hence, the present appeal.
6. There is no denying the fact that it was incumbent on the part of appellant to have pursued his complaint diligently before the Ld. Trial Court and he should have been present on each and every date of hearing before the Ld. Trial Court. Having said that it is in the interest of justice and fair play that the appellant deserves one more opportunity to pursue his complaint before the Ld. Trial Court.
7. No doubt the complainant had not appeared on 18.11.2019 due to noting down of wrong date yet he deserves one clear Page No. 3 /5 CA/08/20 opportunity to prosecute his case. No prejudice whatsoever shall be caused to the accused persons as they are not even summoned in the matter whereas grave prejudice would be caused to the complainant/appellant if he is not allowed to prosecute his case. It appears that non appearance on the date fixed was neither intentional nor deliberate but due to noting down of wrong date. Ld. Counsel for appellant has also placed on record photocopy of his diary which clearly shows that the date as 28.11.2019 instead of 18.11.2019. In the interest of justice, one opportunity is granted to the appellant/complainant to prosecute his case however subject to cost of Rs.5,000/ (Five Thousand). Out of the aforesaid amount, Rs. 2000/ (Two Thousand) shall be given to the respondents and Rs. 3000/ (Three Thousand) shall go to the State.
8. This Apex Court in Rajendra Prasad v. Narcotic Cell (SCCp. 113, para 8) has observed as under:
"After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or Page No. 4 /5 CA/08/20 to find out and declare who among the parties performed better."
9. In view of the foregoing reasons and discussion, the order dt.18112019 is hereby set aside. The Trial Court shall grant one clear opportunity to the appellant to prosecute his case as per law.
10. Copy of this order be sent to the Trial Court for compliance.
11. Appeal file be consigned to Record Room.
Digitally
signed by
DEEPAK
DEEPAK JAGOTRA
ANNOUNCED IN THE OPEN COURT JAGOTRA Date:
2020.11.27
15:42:26
ON 27th NOVEMBER, 2020. +0530
(DEEPAK JAGOTRA)
PRINCIPAL DISTRICT & SESSIONS JUDGE
EAST DISTRICT
KARKARDOOMA COURTS, DELHI
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