KAILASH CHAND AGARWAL Vs. STATE & ANR.

JUDGEMENT

(1.) Instant petition has been filed assailing order dated 15th June, 2007 whereby complaint of petitioner filed with regard to offence under Sec. 138 of Negotiable Instruments Act before taking cognizance was dismissed in default and the application for restoration which was filed within 13 days of its dismissal was also rejected vide order dated 6th Sept., 2006.

(2.) Petitioner-complainant filed a complaint under Sec. 138 of Negotiable Instatements Act against accused-non-petitioner with regard to default in payment by dishonouring of cheque on 19th June, 1996. Thereafter, the matter was fixed on 27th Aug., 2006 and arguments were made for taking cognizance on 28th Oct., 2006. It appears that case was adjourned on 2nd Jan., 2007 and thereafter, on 30th March, 2007 and further posted on 15th June, 2007 for passing order by learned Magistrate for taking cognizance on the said complaint. Since arguments were already made on his behalf and no one could appear on solitary date i.e. 15th June, 2007 complaint itself was dismissed by learned Magistrate in non-prosecution. Within 13 days of its passing said order, application for restoration was filed that too was dismissed vide order impugned dated 6th Sept., 2007.

(3.) Normally the notices are required to be issued in the matter and respondents are required to be heard, but in the facts of instant case, since before taking cognizance, complaint itself was dismissed in default, no notices were issued to the respondent by learned trial Judge. This court does not consider appropriate to issue notice to the respondent in the facts of instant case.