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Judgment
Daya Chaudhary, J.
Crl. Misc. No. 13208 of 2011
This is an application for placing on record zimni orders as Annexure P-5 (colly).
Application is allowed and Zimni orders are taken on record as Annexure P-5 (colly).
Crl. Misc. No. M-2165 of 2011
The present petition u/s 482 Code of Criminal Procedure has been filed for quashing of order dated 3.11.2010 passed by Sessions Judge, Gurgaon, vide which, order dated 15.9.2010 passed by Judicial Magistrate 1st Class, Gurgaon dismissing the complaint filed by the Petitioner against the Respondent u/s 138 of Negotiable Instrument Act, 1881 was upheld.
Learned Counsel for the Petitioner-Company inter alia contends that the complaint filed by the Petitioner-Company was dismissed for want of prosecution. An application for exemption from personal appearance of the authorized representative of the Company was filed before the trial Court on the ground that his aunt had expired and he was not in a position to appear before the trial Court. The said application was not accepted by the trial Court and the complaint was dismissed for want of prosecution by stating that complainant was not present for preliminary evidence. Learned Counsel for the Petitioner-Company further submits that an affidavit of authorized representative of the Company was prepared on 30.8.2010 but the same could not be tendered in evidence on said date and the case was adjourned for 15.9.2010 for the said purpose. On 15.9.2010, the authorized representative of the Petitioner-Company could not appear because of the reasons mentioned above and the complaint was dismissed for want of prosecution. Against the said order, the Petitioner-Company filed revision, which was also dismissed on the ground that ample opportunities were granted to the Petitioner-Company to adduce the evidence, whereas, ample opportunities were not granted. Learned Counsel also submits that the findings given by both the courts were contrary to the facts as the complaint was at pre-evidence stage.
Heard the arguments advanced by learned Counsel for the Petitioner and have also gone through the impugned orders as well as zimni orders available on the file.
It is an admitted fact that an application for exemption from personal appearance was filed on behalf of authorized representative of the Company but the same was declined and the complaint was dismissed for want of prosecution. The reason given in the application for exemption from personal appearance appears to be genuine as because of the death of his relative, he could not appear before the trial Court and inspite of making request in the application, the case was dismissed for want of prosecution. Learned Counsel prays that if one more opportunity be granted to the Petitioner-Company, it will tender an affidavit which is already ready.
In view of the submissions as well as facts and circumstances of the case, impugned order dated 3.11.2010 passed by Sessions Judge, Gurgaon and order dated 15.9.2010 passed by Judicial Magistrate 1st Class, Gurgaon are set aside and petition is allowed by giving one more opportunity to the Petitioner-Company to adduce its evidence by way of an affidavit subject to payment of costs of Rs. 10,000/-, which is to be deposited with Haryana State Legal Services Authority.