OM PARKASH Vs. GOLDEN FOREST INDIA LTD

JUDGEMENT

(1.) CHALLENGE in the present petition is to the order passed by learned Additional Chief Judicial Magistrate, Faridabad dated March 04, 2004 whereby the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") was dismissed in default. In addition to this, the challenge is also to the order dated August 18, 2006 passed by Judicial Magistrate Ist Class, Faridabad vide which application for restoration of the complaint was dismissed as not maintainable.

(2.) BRIEFLY the facts are that the petitioner filed a complaint under Section 138 of the Act against respondents on account of dishonour of cheque for Rs. 1,05,200/- due to insufficient funds. After recording the preliminary evidence, the complaint was fixed for further proceedings on March 04, 2004. On the date fixed neither the petitioner nor his counsel appeared and the same was dismissed in default. Even the application for restoration of the complaint filed by the petitioner was also dismissed. The contention is that petitioner as well as his counsel could not appear on the date fixed for the reason that date was wrongly noted as March 09, 2004 as against March 04, 2004. In order to prove, he produced even copy of the diary and the file cover. He submitted that after filing of the complaint, petitioner had been appeared on all the dates and merely because of his non appearance on one date he should not have been penalized. However, he admits that application for restoration was not maintainable before the Court below.

(3.) THIS Court while considering an identical issue in Criminal Misc. No. 36522-M of 2006 (Purushotam Mantri v. Vinod Tandon alias Hari Nath Tandon) vide judgment dated January 30, 2008 opined as under :-