JAYENDRABHAI KANTILAL SHAH Vs. OMPRAKASH J SHAH

JUDGEMENT

(1.) PRESENT appeal has been preferred by the appellant � complainant to quash and set aside the impugned order passed by the learned Metropolitan Magistrate, Court No.3, Ahmedabad in Criminal Case No. 131 of 2008 dtd.31/7/2009 by which the learned Magistrate has dismissed the said complaint for default, filed by the appellant for the offence under section 138 of the Negotiable Instruments Act.

(2.) MS .Contractor, learned advocate appearing on behalf of the appellant � original complainant has submitted that as such there was no negligence and/or malafide intention on the part of the appellant � complainant in not proceeding further with the criminal complaint. It is submitted that as such initially the appellant � complainant was remaining presently present in the court, however, due to his ill-health he could not thereafter remain present and in fact he was in contact / touch with his advocate, however there was no response from his advocate. She has further submitted that as such the case was transferred to the Metropolitan Magistrate, Court No.3, Ahmedabad, but the appellant was not aware about it and his advocate was not giving satisfactory reply and therefore, the appellant personally made inquiry and he came to know that the complaint has been dismissed for non-prosecution. It is submitted that as such it was the fault and/or negligence on the part of the advocate for not remaining present and therefore, the appellant should not be made to suffer. It is submitted that the appellant has a meritorious case with promissory note etc. and therefore, it is requested to give one additional opportunity to the appellant to submit the case on merits and restore the complaint even on imposing reasonable cost.

(3.) MS .Contractor, learned advocate appearing on behalf of the appellant has stated at the bar that if the complaint is restored to file, the appellant and/or his advocate shall fully cooperate the learned Metropolitan Magistrate in early disposal of the complaint/ Criminal Case.