JAGDISH BHATI Vs. KHUSHAL SINGH

JUDGEMENT

(1.) BY this criminal revision petition under Sec. 397 read with Sec. 401 Crpc, the petitioner has challenged the order dated 22. 11. 2003 passed by Additional Civil (Sr. Div.) and Judicial Magistrate No. 2, Jodhpur on a complaint being complaint case No. 82/2003 filed by the petitioner complainant under Sec. 138 of the Negotiable Instrument Act, 1881 (for short, 'the Act') was dismissed in default.

(2.) I have heard learned counsel for the petitioner and the counsel for the respondent. Perused the order impugned and material placed on record.

(3.) BRIEFLY stated facts relevant and necessary for decision of the revision petition are that a complaint was filed by the petitioner on 11. 9. 2001 against the non-petitioner for the offence under Sec. 138 of the Act. The statement of complainant was recorded and thereafter the Trial Court took cognizance of the offence on 19. 9. 2001 and issued the process against non- petitioner. The non-petitioner appeared before the Court on 25. 7. 2002. The arguments on charges were heard by the Trial Court on 22. 10. 2002. However, till 1. 7. 2003, the Trial Court could not frame the charge and ultimately on 2. 7. 2003, the Trial Court framed the charge and read over to the non-petitioner. The matter was posted for the evidence of the complainant on 4. 9. 2003. The non-petitioner did not appear and matter was adjourned to 3. 11. 2003. On 3. 11. 2003, none of the parties appeared and the matter was adjourned to 22. 11. 2003. On 22. 1. 2003, the petitioner complainant as also his counsel could not appear before the Court in early hour of the Court. The Trial Court dismissed the complaint case in default. At about 12. 05 in midday, the complainant and his counsel appeared and filed an application before the Trial Court stating the reasons of their non- appearance. It was stated that the complainant is a retired Scientist and on the relevant date, he was the Chief Guest of the Science Fair organized in a public school and after attending the function, he reached the Court. It was also stated that the counsel representing the petitioner suddenly fell ill and consulted the Doctor and after receiving the treatment rushed up to the Court and on reaching the Court, it was noticed that the complaint filed by the petitioner had already been dismissed in default. An application seeking restoration of the complaint case was promptly filed on the very day. The trial Court refused to recall the order or restore the complaint on the ground that once the complaint has been dismissed, there is no provision to restore the same. From the affidavit filed by the counsel appearing for the petitioner before the Trial Court, it is more than clear that the counsel appeared 12. 10 midday before the Trial Court but before appearance of the counsel, the complaint already stood dismissed in default. The prescription slips of the counsel were also filed before the Trial Court.