AMAN KUMAR Vs. VIJAY KUMAR

JUDGEMENT

(1.) The present appeal is directed against the order dtd. 12/4/2005, passed by the learned Chief Judicial Magistrate, Jalandhar, whereby, the complaint filed by the present appellant/complainant was ordered to be dismissed in default.

(2.) Learned counsel for the appellant contended that the appellant/complainant had filed a complaint against the respondent/accused under Sec. 138 of the Negotiable Instruments Act (for short 'the NIA Act') on 10/7/2004. It was stated in the complaint that in order to discharge his legal liability, the respondent had issued a cheque bearing No.004180 for a sum of Rs.91,750.00 dtd. 3/4/2004 drawn on Andhra Bank, Jalandhar, in favour of the appellant/complainant and assured the appellant that the cheque would be honoured on presentation. However, as per the assurance of the respondent, when the cheque was presented for encashment, the same was returned and was dishonoured with the remarks 'Funds Insufficient'. Accordingly, a legal notice was issued to the respondent through registered as well as UPC Post. However, the respondent did not make the payment. Ultimately, the appellant was constrained to file a criminal complaint in the Court of learned Area Magistrate, Jalandhar on 10/7/2004. Learned counsel further contended that the appellant was present on each and every date of hearing with his counsel and never absented during the Court proceedings. However, on 12/4/2005, the case was listed for appearance of the accused. But due to mistake, the appellant had wrongly noted the date of hearing as 18/4/2005 instead of 12/4/2005. Due to this, when the case was taken up for hearing on 12/4/2005, the appellant could not appear before the learned Magistrate and his act of non-appearance was neither intentional nor willful. Learned counsel further contended that on the date fixed i.e. on 12/4/2005, no effective proceeding was to take place and the case was listed for appearance of the accused only. Learned counsel further submitted that it was a bona fide mistake on his part and the complaint was wrongly ordered to be dismissed in default by the learned Chief Judicial Magistrate, Jalandhar.

(3.) Learned counsel for the appellant has relied upon the law laid down in the matter of 'Shakti Industrial Corporation Vs. Ridaus Auto Components Private Limited and other', 2015(8) RCR (Criminal) 457; 'Santosh Devi Vs. Mahinder Singh', 2015(2) R.C.R. (Criminal) 192 and 'The Associated Cement Co. Ltd. Vs. Keshvanand', 1998 (1) RCR (Criminal) 309.