Mrs. Usha Maheshwari vs Sh. Arun Kumar Gupta

Shiv Narayan Dhingra, J.—This appeal has been preferred against the order dated 21st April. 2006 passed by learned MM whereby he dismissed the complaint of the complainant for non-appearance and acquitted the accused persons. It is stated by the appellant that the appellant had filed a complaint u/s 138 of Negotiable Instruments Act on dishonour of a cheque of Rs. 25 lakh issued by the respondent in favor of appellant, for insufficient funds. The appellant had been diligently pursuing the complaint and a notice u/s 251 Cr.P.C. was framed against the respondent. The appellant was leading the evidence in the case and she was partially cross examined on 3rd June, 2005. The respondent took 6 adjournments for appellant''s cross examination for one or the other reason. The appellant was having a serious family problem. On 19th March, 2006, she was forced to vacate the house she was living in and her articles and belongings including case file were put on road. She had to remain on road as her husband did not provide any shelter or monetary help to her. However, later on her neighbours provided shelter to her but her case file got misplaced and she did not remember the date of case orally, so she could not appear before the Trial Court on 21st April, 2006. It is submitted that during that period she was completely broken down. She was also facing a divorce case filed by her husband. When she received summons of divorce case, she approached Mr. S.C. Varshney, Advocate through a friend and told him about the complaint filed by her u/s 138 Negotiable Instruments Act. It is then only that she learnt about her complaint having been dismissed on 21st April, 2006. Mr. Varshney helped her in finding the status from Court file.

The respondent has taken the stand that the case filed by the appellant was a cock and bull story. If fact, she had abandoned her complaint and did not appear before the Court.

Considering the fact that the complaint of the appellant involved dishonor of a cheque of Rs. 25 lakh, I find no reason why the appellant would abandon the complaint. I consider that she had genuine and reasonable ground not to appear before the Court on 21.4.2006. Even otherwise the dismissal of the complaint is not the only option before the Magistrate when the complainant does not appear. Magistrate can exercise the option of adjourning the case for next hearing.

Looking into the facts and circumstances, I allow this appeal. The order of learned MM is set aside. The complaint of the appellant is restored to its original number.

Parties are directed to appear before the Court of MM on 11th February, 2008.