SATISH KUMAR Vs. ROHIT BASSI

JUDGEMENT

(1.) Prayer in this petition filed under Section 482 Cr.P.C. is for quashing/setting aside the order dated 28.9.2011 passed by Judicial Magistrate Ist Class, Jalandhar (Annexure P-2), vide which, the Complaint/Criminal Case No.1500/2/10 dated 3.9.2010 titled as Satish Kumar v. Rohit Bassi filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") was dismissed in default.

(2.) The order dated 28.9.2011 reads as under:-

(3.) As per the averments made in this petition, the petitioner filed a complaint under Sections 138 and 142 of the Act read with Sections 420 and 467 IPC, as the cheque issued by the respondent in favour of the petitioner being dishonoured by the bank authorities. However, the trial Court dismissed the said complaint in default on account of non-appearance of the complainant, vide order dated 28.9.2011. It has been averred that the Clerk of the previous counsel of the petitioner had told the petitioner that since the respondent was declared as proclaimed offender, his presence would be required only when the respondent appears before the trial Court or he is arrested by the police and in these circumstances, he did not appear before the trial Court. However, later on, when the petitioner found the respondent moving freely and was not being arrested by the police, he moved the police station for seeking his arrest, where he came to know that the police is unable to arrest the respondent in absence of any order of the Court. Therefore, in February, 2014, the petitioner contacted his lawyer for getting a copy of the order, declaring the respondent as proclaimed offender and came to know that the aforesaid complaint was dismissed in default on account of his non-appearance on 28.9.2011. Though the petitioner moved an application for restoration of the complaint, but the same was dismissed vide order dated 12.3.2014 with an observation that the same is not maintainable, since the Magistrate, as a Magistrate, is not competent to revive his own order, dismissing the complaint in default.