ARUN KUMAR Vs. HARISH KUMAR

JUDGEMENT

(1.) This is a petition under Section 482, Cr.P.C. for restoration of Criminal Case No. 981 of 2001 Filed by the petitioner under Section 138 of Negotiable Instruments Act, which was dismissed in default of appearance of the petitioner.

(2.) In short facts of the case are that the petitioner filed a private complaint alleging that cheque for Rs. 32,700/- issued by the respondent to the petitioner was dishonoured and the amount was not paid in spite of notice. In the private complaint it was alleged that cognizance be taken and respondent be convicted. After taking cognizance case was registered and notices were issued to the respondent. On 13.2.2004 the private complaint was dismissed as petitioner was not present. The restoration application was filed by the petitioner, which was numbered as M.Cr.C. No. 0 of 2004 and it was dismissed on the ground that there is no provision for recalling the order. M.Cr.C. No. 5163 of 2005 was filed before this Court against the order passed by the learned Court below, which was also dismissed on account of absence of the petitioner. Thereafter a petition was filed before this Court, which was numbered as M.Cr.C. No. 366 of 2006, which was dismissed as withdrawn vide order dated 3.2.2006 with liberty to file fresh petition along with full facts.

(3.) From perusal of the record, it appears that the absence of the Counsel for petitioner before the learned Court below on 13.2.2004 was based on bona fides. Since the petitioner intends to pursue the matter seriously, therefore, present petition filed by the petitioner is allowed and order dated 13.2.2004 passed in Criminal Case No. 981 of 2001, whereby criminal case filed under Section 138 of Negotiable Instruments Act is recalled and the case is remitted back with a direction to appear before the learned Court below with the certified copy of this order on 2.3.2009. Upon his appearance the learned Court below shall proceed with the case in accordance with law.