SURESH SETH Vs. JASMER SINGH

JUDGEMENT

(1.) THE present appeal has been directed against the order dated 22.2.2012 passed by the Additional Chief Judicial Magistrate, Kaithal whereby complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short "the Act") filed by the appellant was dismissed for want of prosecution.

(2.) COUNSEL for the appellant contends that criminal proceedings were initiated in the year 2007 and the court took cognizance of the offence and issued process against the accused (respondent) proceeding against him for committing offence punishable under Section 138 of the Act. During pendency of the proceedings, compromise was effected between the parties and it was agreed that the accused will make payment to the complainant in May and the case was adjourned sine die. The accused failed to comply with the terms and conditions of the compromise. The complainant moved an application for restoration of the complaint. The complainant examined CW3 on 6.12.2011 and the case was adjourned to 21.12.2011 on which date, the case was adjourned to 22.2.2012. On 22.2.2012, in the morning the complainant was present in the Court but after lunch he could not put in appearance and the case was dismissed for non -prosecution. It is argued that the trial court neither considered the conduct of the appellant in pursuing the proceedings consistently since 2007 nor adverted to the fact if personal appearance of the complainant could be dispensed with. It is argued with vehemence that in case order dated 22.2.2012 is not set aside, it will cause serious prejudice to the rights of the appellant to be heard on merits with regard to liability of the accused for committing offence punishable under Section 138 of the Act as the cheque for a sum of Rs. 20 lakhs issued by the accused in discharge of his legally enforceable liability got dishonourned on its presentation to the bank. The last submission made by counsel is that absence of the appellant from the proceedings on 22.2.2012 was neither intentional nor mala fide.

(3.) COUNSEL for the respondents submits that despite grant of number of opportunities, the complainant failed to examine its witnesses. On 22.2.2012, the complainant failed to appear in the court and as such complaint was rightly dismissed by the court.