(V. Gopala Gowda and Adarsh Kumar Goel, JJ.)
Apparel Export Promotion Council and Another _________ Appellant(s);
v.
College Culture and Others ________________________ Respondent(s).
Criminal Appeal No(s). 1678 of 2012, decided on July 29, 2015
The Order of the court was delivered by
Order
1. Heard the learned senior counsel appearing on behalf of the appellants. None appeared on behalf of the respondents despite calls.
2. The appellants have challenged the correctness of the judgment and order dated 11.10.2007 passed by the High Court of Delhi in Criminal Misc. Case No. 3011 of 2004 quashing the order of summoning dated 21.01.2004 issued under Section 138 of the Negotiable Instruments Act, 1881.
3. This Court, vide Order dated 17.10.2012, while granting leave directed the trial court to proceed with the trial in complaint No. 204 of 2004 under Section 138 of the Negotiable Instruments Act, 1881, titled as “Apparel Export Promotion Council v. College Culture” which was initially stated to be pending in the Court of Sh. S.K. Malhotra, Metropolitan Magistrate, New Delhi, but shall not pronounce the final judgment wihout the leave of this Court.
4. The correctness of the impugned judgmnet is questioned placing strong reliance upon the facts mentioned at Paragraphs 15 and 16 of the impugned judgment that the order of forfeiture passed on 3.07.2002 was stayed by the Textile Commissioner vide its interim Order dated 29.08.2002 in exercise of its appellate jurisdiction staying the operation of the Order dated 3.07.2002. During the pendency of the appeal before the appellate authority, the post dated cheques issued by the respondents herein on 1.06.2002 expired, on 14.11.2002, under directions of the appellate authority, first respondent herein replaced the cheques towards earnest money deposit by issuing post dated cheques dated 1.06.2003. The appeal was pending during the time cheques were presented for encashment. By the time the cheques were reissued on 14.11.2002, liablity to pay the amount to the appellants was already accrued is the case sought to be made out by the appellants before the learned Magistrate Court. This aspect of the matter is not considered and dealt with by the High Court in the impugned judgment. Therefore, we are of the view that this aspect of the matter has to be gone into by the trial court.
5. The parties are at liberty to adduce oral or documentary evidence in support of their respective claim and counter claim, the same may be examined by the trial court if such evidence is placed on record and record the finding of fact on the relevant issue that would arise in the case and proceed with the matter in accordance with law.
6. The appeal is allowed in the abovesaid terms.
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