KARANDEEP SINGH Vs. JAGDISH GOYAL

JUDGEMENT

(1.) Petitioners only contention is that respondent filed the complaint under Section 138 of the Negotiable instruments Act against him before the lower Court, which was taken up before it on 12-6-1992 and on 15-7-1992, but on both these dates the complainant did not appear. On 15-7-1992 the complaint was dismissed in default for want of prosecution but later on the respondent filed a petition for restoration of the complaint alleging that the case was listed for 12-6-1992 and on that very date, the complainant and his Counsel noted the next date as 13- 8-1992. Hence, on this date, he filed a petition for restoration of his complaint on the said ground.

(2.) The learned Magistrate passed the impugned order Annexure p. 2, wherein it has been mentioned that the case was adjourned to 13-8-1992, but inadvertently the case was fixed for 157-1992. On 15-7-1992 the complainant could not appear as he had noted the date 13-8-1992, therefore, for the fault of the Court, complainant cannot be allowed to suffer, hence, the complaint was restored on 9-9-1992.

(3.) Relying on Major General A.S. Gauraya and Another v. S.N. Thakur and Another1, petitioners learned counsel contended that once the complaint was dismissed in default for want prosecution, the Magistrate had no jurisdiction to restore it under any of the provisions the Code of Criminal Procedure.