LOKESH PANCHOLI Vs. CHATURBHUJ SUTHAR

JUDGEMENT

(1.) This criminal appeal has been filed against the judgment dated 14.01.2015 passed by the Special Judicial Magistrate, (NI Act Cases) No.2, Udaipur, (hereinafter referred to as the 'court below') in Criminal Case No. 1561/2013, whereby the court below has dismissed the complaint filed by the appellant under Section 138 of the Negotiable Instrument Act, 1881 on account of non appearance of the appellant and his Advocate.

(2.) Learned counsel for the appellant has submitted that as a matter of fact, on the complaint filed by the appellant under Section 138 of the Negotiable Instrument Act, 1881, summon was issued to the respondent and 14.01.2015 was the date fixed for the appearance of the respondent. It is submitted that from the record of the trial court, it is clear that the summon issued to the respondent was not even served on him on 14.01.2015 and as such there is no requirement of the appellant or his Advocate to appear before the trial court because the trial court was supposed to issue fresh summons to the respondent for his appearance. It is contended that looking to the above fact, the order passed by the trial court dismissing the complaint of the appellant under Section 138 of the Negotiable Instrument Act, 1881 is contrary to the principle of natural justice.

(3.) Learned counsel appearing for the respondent has opposed the appeal, however, he frankly admitted that since the summon of the complaint under Section 138 of the Negotiable Instrument Act, 1881 was not served upon the respondent, the trial court was supposed to issue fresh summon and the presence of the appellant or his Advocate was not required on the date when his complaint was dismissed by the trial court for non-prosecution.