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Judgment
A.S. Pachhapure, J.—This appeal is filed challenging the order of acquittal of the respondents for the offences punishable u/s 138 of the Negotiable Instruments Act (hereinafter called as ''the Act'') and the order of the learned Sessions Judge dismissing the revision petition.
The facts relevant for the purpose of this appeal are as under:
The appellant filed a complaint before the Trial Court alleging that the respondent-accused approached the complainant company to place an inter-corporate deposit with the first accused as the company was in financial crisis, and in such circumstances the complainant agreed to place Rs. 50,00,000/- as inter-corporate deposit repayable with interest at 21% p.a., the complainant paid the said sum through two cheques drawn on Bank of America, Mumbai for Rs. 20,00,000/- and another cheque drawn on State Bank of India for Rs. 30,00,000/-. The second and the third respondent i.e., the accused in the Trial Court entered into an agreement of guarantee on behalf of the first accused on the basis of the resolution passed during the meeting of the Directors.
For the discharge of the said'' debt and liability, the first accused company issued a cheque dated 7.7.1996 drawn on Dena Bank for Rs. 50,00,000/-. The said cheque was presented for encashment and it returned dishonoured and the complainant has initiated legal action for the dishonour of the said cheque and the matter is pending adjudication in the Court of the Metropolitan Magistrate, Mumbai.
During the pendency of the above said proceedings, the accused company represented by the second accused approached the complainant and offered to pay Rs. 50,00,000/-and the interest thereon in installments commencing from 15.7.1997, as per the schedule annexed to its letter dated 25.2.1997.
Without prejudice to the right to prosecute the pending case, the complainant presented the cheques for realization and that cheque was also dishonoured, and action was taken for the said act as well. The complainant company got next cheque bearing No. 076896 dated 15.4.1998 drawn on Dena Bank for Rs. 2,00,000/- for realization through their banker Syndicate Bank. This cheque was also dishonoured for insufficient funds. A legal notice dated 1.6.1998 was issued calling upon the accused to make the payment and as there was no compliance, the complainant approached the Trial Court and submitted the complaint on these facts to take action against the accused for the offence punishable u/s 138 of the Negotiable Instruments Act.
The cognizance was taken and the summons was issued to the accused respondent herein. The steps were being taken for the appearance of the accused. It is on 17.9.2002 that the P.F. was paid. The matter was adjourned to the next date. The Presiding Officer was on leave. Again the matter was posted on 27.2.2003, 21.6.2003, 3.10.2003, 12.11.2003 and finally on 30.12.2003. On these dates, the complainant was absent and in the circumstances, the Trial Court held that the complainant was absent and the steps were not taken. The complaint was dismissed and the accused was acquitted of the offence punishable u/s 138 of the Act.
Aggrieved by the said order, the complainant approached the Sessions Court in revision and the said revision petition was dismissed on the ground that it is not maintainable. Hence, the complainant has approached this Court in appeal against the order of acquittal passed by the Trial Court.
I have heard the learned advocate for the appellant, Counsel for the respondent No. 5 is absent.
The point that arises for my consideration is:
i) Whether the order dismissing the complaint for steps not taken and acquitting the accused deserves to be set aside?
It is the submission of the learned Counsel for the appellant that the Manager who was in charge of the company earlier was changed and the Manager won negligent and on account on his negligence, the steps were not taken. He submits that the negligence of the Manager should not cause any injustice to the company i.e., the complainant and in the circumstances he submits that the delay, if any, or the absence that has been caused can be compensated by awarding cost to the respondents. In the circumstances he submits to set aside the order of acquittal.
I have perused the order sheet maintained by the Trial Court. It is relevant to note that the case was posted on 17.9.2002 on which date the P.F. was paid, summons were issued to the accused, but on the next date the Presiding Officer was on leave In such circumstances the case came to be adjourned to the future dates.
The perusal of the order sheet does not reveal as to what happened to the summons issued to the accused on 17.9.2002. It is the duty of the Court to mention in the order sheet as to whether the summons is served or not and if not served, the reasons for not serving has to be mentioned, so that the complainant on the date can take steps for service of summons to the accused. Nowhere, on the specific dates there is any mention as to why the summons, which was issued on 17.9.2002 was not served.
It may be that as the complainant had paid the P.F. on 17.9.2002 the complainant might have been under the impression that the summons is served, and in such circumstances he may not have remained present before the Court on the specific dates. It appears that there is mistake on the part of the Court in not notifying as to what happened to the summons issued on 17.9.2002. Furthermore, immediately after the dismissal of the complaint and acquittal of the respondents, the complainant has approached in revision to the Sessions Court and revision was held not maintainable and hence the complainant has preferred an appeal before this Court. There is some delay in not taking the steps and this delay itself should not be the cause for denying relief to a party. Normally it is the motto of the Courts to see that justice is done and if there is any negligence it can be compensated by awarding costs. So taking into consideration this aspect, I thing the interest of justice would be met by setting aside the order of acquittal on payment of costs payable by the complainant to the accused. In the circumstances, I answer the point in affirmative and proceed to pass the following:
ORDER
The appeal is allowed on costs of Rs. 5,000/-. The order passed by the XII Additional Chief Metropolitan Magistrate dated 31.12.2003 challenging the revision before the Sessions Court is set aside. The complaint is ordered to be restored and the appellant herein is directed to take steps immediately after the appearance before the Trial Court. The amount of costs shall be deposited in the Trial Court within two months from today and be paid to accused after the appearance. To avoid the delay, the complainant is directed to appear before the Trial Court on 26.5.2010 and take the steps. The Trial Court shall dispose of the case in accordance with law expeditiously.