Ajay Khurana vs M/s Anil Cloth House

Sarojnei Saksena, J.—Heard. Complainant-petitioner filed the complaint u/s 138 read with Sections 14 land 142 of the Negotiable Instruments Act, 1881.On 28.3.1997 preliminary evidence of the complainant was recorded by the trial Court and the case was adjourned, to 29.7.1997 for arguments with regard to summoning of the accused. On this date, as the complainant did not appear before the trial Magistrate till 9.20 A.M., his complaint was dismissed vide order dated 29.7.1997. Petitioner''s learned counsel relying on Kuldip Singh v. Harnam Singh Another, 1982 Criminal Law Times 289 contends that in such circumstances, the learned Magistrate had no jurisdiction to dismiss the complaint; he ought to have considered the evidence and should have passed the necessary order to summon the accused or could have dismissed the complaint on merits.

Respondents'' learned counsel points out that on that very date, i.e., 29.7.1997. the complainant-petitioner filed an application to restore the complaint, which was dismissed by the learned trial Court. Since the petitioner-complainant has not filed this revision against that order, revision is not maintainable.

Petitioner-complaint has filed copy of the second order dated 29.7.1997 passed by the learned Trial Magistrate. Even if he has not challenged that order in this revision, he can still challenge the first order passed by the trial Magistrate on 29.7.1977 dismissing his complaint for his non-appearance. The learned Magistrate after recording the complaint''s preliminary evidence ought to have considered the evidence and should have passed the necessary order cither summoning the accused or dismissing the complaint on merits, but he chose to dismiss the complaint in default for non-appearance of the complainant. But from the other order passed on 27.9.1997 itself it is evident that at 11.30 A.M. on that very date, the complainant appeared before the Court, filed an application to restore his complaint, but that too was dismissed. It further reveals that the petitioner-complainant''s complaint was dismissed in the early part of the day as during those days, the Court hours were from 7.00 A.M. to 1.00 P.M.

Considering all the above facts, revision is allowed. Impugned order dated 29.7.1997 whereby the petitioner-complainant''s complaint was dismissed in default, is set aside. The lower court is directed to proceed further after considering the complaint''s preliminary evidence and passing a legal order thereon after giving a right of hearing to the petitioner-complainant. The petitioner-complaint is directed to appear before the lower Court on 14.5.1998.