SURESH KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal has been preferred against impugned order dated 13.1.2016 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi (herein after referred to as "Magistrate") in case NI Act No. 1157/2015 (333-III/15), whereby complaint filed by appellant Gurdass against respondent Suresh Kumar under Sec. 138 of Negotiable Instruments Act (hereinafter referred to as "NI Act") , came to be dismissed in default for non-presence and non-prosecution, when the case was listed for service of complainant after receiving the same on transfer from Judicial Magistrate, 1st Class, Jogindernagar, District Mandi, H.P.

(2.) Respondent present in Court has submitted that he is not in a position to engage counsel, therefore, Mr. Nitin Thakur, Advocate is appointed as Amicus Curiae with request to assist the Court on behalf of respondent. After going through the record, under instructions of respondent, learned Amicus Curiae submits that, complaint filed against respondent is a false complaint and respondent has not committed any offence as alleged. In present case merits of the allegations made in the complaint are not in question, but the present petition has arisen on account of dismissal of the complaint in default by learned Magistrate. Respondent has a right to refute the allegations made in the complaint before the trial Court in accordance with law.

(3.) Initially the case was filed in the Court of learned Special Magistrate, Mandi on 25.4.2014, wherein preliminary evidence was led on 9.5.2014. In view of judgment passed by the Apex Court, case was transferred from the Court of Special Magistrate, Mandi to Judicial Magistrate 1st Class, Jogindernagar. The case was listed before the said Court on 1.9.2015, on which, on account of insertion of Sec. 142(2) in the Negotiable Instruments Act, 1881 by way of Negotiable Instruments (Amendment) Ordinance, 2015, No. 6 of 2015, promulgated by President of India on 15.6.2015, case was again ordered to be transferred back to Mandi. After receiving the same, learned Chief Judicial Magistrate, Mandi had assigned it to learned Additional Chief Judicial Magistrate and it was listed before the said court on 30.10.2015, on which date summons were issued to complainant for presence on 13.1.2016. On 13.1.2016 for absence of complainant or his counsel, impugned order has been passed, which reads as under:- <FRM>JUDGEMENT_25_LAWS(HPH)10_2018_1.html</FRM>