The High Court set aside the order dismissing a Section 138 complaint due to the petitioner's counsel's absence on the wrong date caused by a diary error. The petition was allowed.
The order dated 6th October 2010 dismissing the complaint was set aside and the complaint No. 4697/08 was restored to its original position.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
$~8
versus
AMIT KUMAR GUGLANI
..... Respondent Represented by: None
CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA
O R D E R % 09.01.2017
Notice was issued to the respondent. Äs per the service report regarding notice through ordinary process on the first address the premises was found locked and on the second address no such person was found residing. Service report of service through speed post is awaited.
An affidavit of service through dasti service has been placed on record stating that the respondent has refused to accept the service.
The petitioner filed a complaint before the learned Metropolitan Magistrate being complaint case No.4697/08 titled as ‘ State Bank of India Vs. Amit Kumar Guglani ’ under Section 138 of Negotiable Instruments Act wherein summons were issued to the respondent on 27th August, 2008. Despite efforts respondent could not be served. On 6th October, 2010 the complaint was dismissed as none was present on behalf of the complainant despite repeated calls.
CRL.M.C. 489/2011
page 1 of 2
The explanation of learned counsel for the petitioner is that since a wrong date was noted and instead of 6th October, 2010, 16th October, 2010 was noted in the diary of the counsel, he could not appear on 6th October, 2010 when the complaint was dismissed.
A perusal of the order sheets would reveal that on all the previous dates counsel for the petitioner was appearing and his absence was only on 6th October, 2010. The explanation rendered by the learned counsel for the petitioner/ complainant is plausible.
Considering the fact that a wrong date was noted due to which the counsel could not appear on 6th October, 2010, the order dated 6th October, 2010 passed by the learned ACMM dismissing the complaint in default is set aside. Complaint No. 4697/08 titled as ‘ State Bank of India Vs. Amit Kumar Guglani ’ is restored to its original position. Learned counsel for the petitioner/ complainant will appear before the learned ACMM on 3rd February, 2017.
Petition is disposed of. Order dasti.
MUKTA GUPTA, J.
JANUARY 09, 2017 ‘ga’
page 2 of 2
CRL.M.C. 489/2011
3 issues framed by the court
Whether the order dismissing the complaint under Section 138 of the Negotiable Instruments Act should be set aside due to counsel's absence caused by a clerical error in the diary noting the wrong dat
Whether the dismissal of the complaint in default was passed due to the presence of the complainant on the court date.
Whether the complaint under Section 138 of the Negotiable Instruments Act should be restored to its original position.
1 provisions across 1 enactments
STATE BANK OF INDIA
AMIT KUMAR GUGLANI
MUKTA GUPTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
