Punjab-Haryana High Court
I.C. Goyal vs Sidhartha Machinery Corporation And ... on 29 June, 2010
Author: Jaswant Singh
Bench: Jaswant Singh
Crl. Misc.No.138-MA of 2009 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Date of Decision:29.6.2010
I.C. Goyal.
.......Appellant.
vs.
Sidhartha Machinery Corporation and others.
.........Respondents.
CORAM: HON'BLE MR.JUSTICE JASWANT SINGH
Present:- Mr. Gaurav Sethi, Advocate for the Applicant/Appellant.
JASWANT SINGH, J.
Crl.M.No.10608 of 2009.
This is an application seeking condonation of 611 days delay in filing the appeal.
For the reasons stated in the application accompanied by the affidavit of the appellant I.C. Goyal the same is allowed and the delay is condoned.
Crl. Misc.No.138-MA of 2009 Appellant has filed the present appeal under section 378(4) Cr.PC for grant of leave to appeal against the judgment dated 11.4.2007 passed by learned JMIC, Ambala Cantt whereby his Crl. Misc.No.138-MA of 2009 2 complaint has been dismissed in default.
Leave Granted.
Facts in brief are that the appellant filed the complaint dated 22.10.2001 against the respondent under section 138 of the Negotiable Instruments Act involving three cheques amounting Rs.10,000/-, Rs.10,000/- and Rs.13,000/-. The complaint on 24th of October 2006 was fixed for summoning of accused/respondent by way of bailable warrants and due to non issuance of the same the case was adjourned to 11th of April 2007 for the same purpose but unfortunately the next date was wrongly noted as 11th May 2007 instead of 11th April 2007 by the counsel for the appellant-complainant as well as by the appellant. On 11th May 2007 the complainant found out that his complaint had already been dismissed in default for want of prosecution on 11th April 2007. It is stated that on each and every date of hearing before the trial court, the appellant-complainant had been appearing and his non appearance on 11th April, 2007 was for the aforesaid reason.
Learned counsel in support of his prayer for restoration has relied upon order dated 23rd March 2009 passed by this court in Criminal Appeal No.45MA of 2008 titled as I.C. Goyal Vs. Sidhartha Machinery Corporation & Others. wherein the other complaint filed by the appellant under section 138 of the Negotiable Instruments Act against the same respondent in identical situation had been dismissed in default and has been ordered to be restored to its original number by Crl. Misc.No.138-MA of 2009 3 the Hon'ble High Court. The operative part of the order dated 23.3.2009 is reproduced as under:-
"The cause shown by the appellant for his non-appearance before the learned trial court is noting down the next date of hearing as 11.5.2007 instead of 11.4.2007. As is well known, a party should not be allowed to suffer because of the negligence on the part of his counsel. In re: Purushotam Mantri Versus Vinod Tandon Alias Hari Nath Tandon, 2008(3) Punjab Law Reporter 595 (P&H) it has been observed that it would be too harsh on the petitioner to non-suit him merely for his non-appearance on one date. In the instant case too, the facts are similar. To my mind, the cause put-forth by the applicant for setting aside the impugned order is sufficient. The doctrine of audi alteram partem too contemplates that no one should be condemned unheard. If the impugned order is allowed to hold ground without any fault of the appellant, he will feel prejudiced in his right. In the words of F. Bucan "Nothing rankles more in the human heart than brooding sense of injustice." If the Crl. Misc.No.138-MA of 2009 4 appellant is not afforded the opportunity to substantiate the allegations contained in his complaint by leading evidence, it will go on rankling in his mind that injustice has been done to him. The Courts are here to administer justice. Therefore, without sojourning any longer on this short point, the impugned order dated 11.4.2007 passed by the court of learned Judicial Magistrate, Ist Class, Ambala Cantt is set aside with a direction to restore complaint case No.280/02 bearing caption I.C. Goyal Prop of M/s Bala Ji Rubbers versus Sidhartha Machinery Corporation and another to its original number and proceed further according to law. The appellant through his counsel has been directed to put in his appearance before the aforementioned Court on 27.4.2009 at 10.00 A.M. The Registry is directed to transmit a certified copy of this judgment to the said court at the earliest possible."
In view of the above and parity of reasoning the present appeal is allowed and the impugned order dated 11.4.2007 passed in complaint no.271 of 2002 (A-1) is set aside with a direction to restore the complaint case no.271 of 2002 bearing title I.C. Goyal Vs. Crl. Misc.No.138-MA of 2009 5 Sidhartha Machinery Corporation & Others to its original number and proceed further according to law. The appellant through his counsel is directed to put in appearance before the court concerned on 30.7.2010 at 10.00 AM. The registry is directed to transmit the certified copy of this judgment to the said court at the earliest possible.
( JASWANT SINGH ) JUDGE 29th June 2010 Vinay