Amar Singh Rana Vs. Pramod Kumar Sharma - Court Judgment

* IN THE HIGH COURT OF DELHI AT NEW DELHI % + Date of decision: March 20, 2014 CRL.L.P. 510/2012 AMAR SINGH RANA Through: Mr.L.S.Solanki, Adv. ..... Petitioner Versus PRAMOD KUMAR SHARMA. ..... Respondents Through: Mr. S.S.Ray, Ms.Rakhi Ray & Mr.Vaibhav Gulia, Advs. CORAM: HON'BLE MS. JUSTICE VEENA BIRBAL VEENA BIRBAL, J.

CRL.L.P. 510/2012 Heard. Leave is granted. Registry is directed to number the petition as criminal appeal. CRL.A. No /2014 (Registry to number it) 1. Admit.

2. With the consent of the parties, appeal is taken up for final disposal.

3. The appellant has filed the present appeal challenging the order dated 24.5.2012 passed by the ld.M.M. in CC No.953/2001 by which complaint u/s 138 of the Negotiable Instruments Act, 1881 (in short referred to as `the Act’) filed by Shri Amar Singh(since deceased) against the respondent, has been dismissed for want of prosecution.

4. The facts alleged in the complaint u/s 138 of the Act are that on Page 1 of 4 10.3.2002 respondent/accused had approached Shri Amar Singh for financial assistance and sought a loan of Rs.50,000/- against two post dated cheques for Rs.25,000/- each vide cheques bearing nos.039979 dated 15.1.2004 and 039980 dated 17.1.2004 both drawn on Bank of Punjab ltd and respondent also promised to pay a nominal interest of 2% on the loan. Respondent/accused paid the interest upto March, 2003 but thereafter he did not pay the interest. However, post dated cheque of Rs.10,000/- towards interest was issued with promise to pay the entire amount by 10.1.2004. Thereafter, number of reminders were given but the amount was not paid. Thereupon complainant deposited two cheques of Rs.25,000/- which were given by the respondent/accused at the time of taking loan but the said cheques on presentation were dishonoured on account of closure of account on 1.7.2004. Thereafter, legal notice was served upon respondent/accused but no reply was received. Accordingly, the aforesaid complaint was filed on 29.4.2004.

5. Learned counsel for the appellant has submitted that during the pendency of complaint, Shri Amar Singh, complainant had died on 17.2.2006 and an application was moved for brining on record his legal representatives. Thereafter on 18.8.2007, his minor son Varun Rana was substituted in his place through his aunt Smt.Anita, sister of complainant late Sh.Amar Singh. It is submitted that earlier the complainant himself was pursuing the matter and after his death, his sister diligently pursued the matter. On 21st January, 2008, notice u/s 251 Cr.P.C was also framed against the respondent/accused to which he pleaded not guilty and claimed trial. An affidavit in evidence on behalf of appellant/complainant has also been filed and respondent/accused has to cross examine the petitioner. Page 2 of 4 6. Learned counsel for the appellant has submitted that on 23.1.2012, Smt.Anita, guardian of minor Varun Rana reached the court by 10.40 am and by that time, case had already called and on her enquiry, she was told that case was adjourned for 24.3.2012. On 24.3.2012, the case was listed at sl.no.1 and by the time, she reached the court, the matter was already dismissed for want of prosecution.

7. It is submitted that earlier the complainant Amar Singh Rana himself was pursuing the matter and after his death, Varun Singh, minor through his guardian Smt.Anita was diligently pursuing. It is submitted that for the last about 10 years, the matter is being pursued. In these circumstances, the ld.trial court ought not have dismissed the complaint for want of prosecution.

8. On the other hand, learned counsel for the respondent has argued that the order passed by the ld.M.M. is fully justified as the complaint case has not been diligently pursued on behalf of petitioner/complainant.

9. The record of the trial court has been pursued.

10. Section 256 of the Code of Criminal Procedure provides that if upon the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day.

11. Perusal of the trial court record shows that earlier the complaint was being pursued by the complainant Amar Singh and after his death, some time was consumed in disposal of substitute application in order to bring L.Rs of deceased complainant on record. Notice u/s 251 Cr.P.C has Page 3 of 4 already been framed and affidavit of complainant is also on record. There are number of adjournments on behalf of respondent/accused also. There is no negligence on the part of complainant in pursuing the matter. Even if some adjournments were taken by complainant, same were account on efforts for settlement. There is an affidavit of guardian of the minor i.e., Smt.Anita to this effect also. In these circumstances, ld.M.M. ought not have dismissed the complaint for want of prosecution. Further valuable right of the appellant/complainant will be lost in case the impugned order is not set aside inasmuch as appellant/complainant will not be able to contest the case on merits.

12. In view of the above discussion, impugned order dismissing the complaint u/s 256 Cr.P.C is hereby set aside. The complaint of the appellant stands restored to its original number. The parties shall appear before the ld.trial court on 21st April, 2014. Thereafter the trial court shall proceed with the matter in accordance with law.

14. Needless to mention that as the present being an old case, the trial court shall try to dispose of the same on priority basis. Appeal stands disposed of. Registry is directed to send a copy of this order to the trial court along with records of the case. VEENA BIRBAL, J MARCH20 2014