RAJIV MALHOTRA Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Nipun Singh along with Sri Naman Agrawal, learned counsel for the applicant and Sri Rajeev Kr. Singh, learned A.G.A. for the State.

(2.) The instant application has been filed to quash the impugned summoning order dtd. 16/8/2023 as well as the entire proceeding of Complaint Case No. 10789 of 2023 (Rahul Chauhan vs. Rajiv Malhotra), under Sec. 138 The Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act"), P.S. Sector-20 Noida, Bulandshahr, pending before Additional Civil Judge (J.D.)-3/J.M., Gautam Buddh Nagar.

(3.) learned counsel for the applicant contends that the complaint of opposite party No.2 was dismissed in default on 18/10/2023 at the stage of taking steps itself. Then, the concerned Court cannot restore the same because it had no jurisdiction to recall the order of dismissing the complaint for want of prosecution. In support of his contention, learned counsel for the applicant has relied upon the judgement of Major General A.S. Gauraya and another vs. S.N. Thakur and another; (1986) 2 SCC 709. In paragraphs No. 9, 10 & 11 of this judgement, the Apex court observed that when the complaint is dismissed for non-prosecution, then the second complaint is permissible, but restoring the same by recalling the order of dismissal is not permissible. Learned counsel for the applicant has relied upon another judgement of the Punjab and Haryana High Court in the case of Krishan Lal vs. Sangeeta Aggarwal; Criminal Misc. No. M - 79076 of 2006 in which learned Single Judge also observed that when the complaint is dismissed in default, then the same cannot be restored by the same Court, and the remedy is available to file revision.