NEW ERA COMMERCIAL INSTITUTE Vs. MOHD ARIF PATEL

JUDGEMENT

(1.) RULE returnable forthwith. Mr. P.D. Kothari, A.P.P. waives service for respondent no.2. Heard finally by consent of parties.

(2.) THE appellant filed Complaint Case No.531/2000 against respondent no.1 under section 138 of the Negotiable Instruments Act. Process was issued against respondent no.1. Respondent no.1 accordingly appeared before the court and the complaint case was adjourned from time to time. According to the appellant, on 24.8.2005 he was present with his counsel and the matter was adjourned to 19.10.2005. It seems that after adjourning the matter, respondent no.1 moved an application for dismissal of the complaint on the ground that the appellant (original complainant) remained absent on various dates including 24.8.2005. On 24.8.2005 the Court made an order on the application to the effect "other side to say" and the matter was adjourned to 15.9.2005. It seems that on 15.9.2005 nothing happened and the matter was adjourned to 27.9.2005 on which date the Court allowed the application as the appellant/original complainant was absent; dismissed the complaint for want of prosecution and acquitted respondent no.1/original accused. The said order is under challenge.

(3.) ON the backdrop of the above referred facts, it is apparent that the order was passed by the Court on 27.9.2005 the notice of which was not given to the appellant/original complainant. Thus, the impugned order dismissing the complaint for default is illegal and cannot be sustained. Hence I pass the following order :