MANJIT KAUR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Vide this petition, the petitioner has challenged the order dated 2-7- 1997 passed by Judicial Magistrate, 1st Class, Gurdaspur (Annexure P-2) whereby her complaint under Sections 138 of the Negotiable Instruments Act and 420 of the Indian Penal Code was dismissed in default.

(2.) Complainant-Manjil Kaur filed criminal complaint. Annexure P-2 against respondent No. 2 in the Court of Judicial Magistrate 1st Class, Gurdaspur for an alleged of fence under the provision of Sections 138-B of the Negotiable Instruments Act and 420 of the Indian Penal Code. She was prosecuting the complaint diligently and had been attending Court of the learned Magistrate on all dates excepting one i.e. 2-7-1997. On that date, PW-Mangal Singh. Clerk, State Bank of India, Dhariwal Branch was present, but was not examined and complaint was dismissed in default as the complainant was not present on that day. According to complainant, she could not appear on 2-7-1997 as she was suffering from fever and was advised rest for 10 days by the doctor with effect from 30-6 1997. A copy of the Medical Certificate is appended with the petition as Annexure P-3. It was the case of the petitioner- complainant that respondent No. 2 - Mukhtiar Singh had cheated her by receiving Rs. 93,000/- from the petitioner for sending her relation Balwinder Singh abroad and not adhering to his commitment. When petitioner persisted with her demand to return money, respondent No. 2 issued 3 cheques in favour of the petitioner, details whereof are reproduced as under :- (a) Cheque No. OXF 878568 110024122 for Rs. 30,000/-, dated 10-3-1996 of PNB Madhuban Delhi. (b) Cheque No. OXF 978569 110024122 for Rs. 30,000/-, dated 20-3-1996 of PNB Madhuban, Delhi. (c) Cheque No. OXF 978570 110024122 for Rs. 33.000/-, dated 31-3-1996 of PNB Madhuban, Delhi. When presented, all the three cheques were dishonoured. Petitioner issued notice to respondent No. 2. However, the amount was not paid to the petitioner and, therefore, she filed complaint, Annexure P-2.

(3.) Learned counsel for the petitioner- complainant contended that on the fateful day i.e. 2-7-1997 when petitioner/complainant could not appear, as she was suffering from fever, her complaint was dismissed in default. A perusal of the complaint clearly shows that the complainant had made efforts and got the summons issued to PW- Mangal Singh, who was present on that day. However, on account of her illness, the petitioner could not appear. The learned Magistrate has not recorded any reasons for dismissing the complaint, as one single default could not be the reason to dismiss the complaint. The cause of absence pleaded by the complainant was fully supported by the medical certificate issued by the doctor, which should have been considered as a valid ground for restoration of the complaint.