Judgment R. C. Kathuria, J. 1. Petitioner has invoked the jurisdiction of this Court under Sec.401 of the Code of Criminal Procedure (hereinafter referred to as the Code) seeking quashing of order dated 8/1/2000 passed by the Subdivisional Magistrate, Samana whereby the complaint under Sec.138 of Negotiable Instruments Act (Amended), 1988 (hereinafter referred to as the Act) read with Sec.420 of the Indian Penal Code (hereinafter referred to as, IPC) filed by the petitionercomplainant against the respondentaccused was dismissed and consequently the accused was discharged. 2. For adjudication of the present petition, the necessary facts have to be focused briefly. Punjab State Civil Supplies Corporation, through its District Manager, Smt. Simarjit Kaur filed the present complaint against Mangat Rai, being the sole proprietor of M/s. Mangat Rai Rice Mills, Ghagga Road, Samana and also against the sole proprietorship concern M/s. Mangat Rai Rice Mills through Mangat Rai, arrayed as accused Nos.1 and 2 respectively under Sec.138 of the Act and Sec.420, IPC. In the year 1995, complainant has supplied 66,423 bags of paddy of custom milling to Mangat Rai, accused as per the contract entered between the parties. The accused had done milling of 4,378 bags, out of the total 66,423 bags of paddy which were supplied by the complainant. Out of remaining bags of paddy left with the accused for milling, accused Nos.1 and 2 purchased 17,267 bags of paddy at the rate of 422/- per quintal plus tax from the complainant in the open Sale Scheme. After physical verification of the stock, shortage of 18005 bags was found for which accused Nos.1 and 2 were responsible. The price of the 18005 bags came to Rs.48,63,137.75. In order to clear the aforesaid liability, accused issued five cheques Nos.145131 for Rs.4 lacs, 145137 for Rs.8 lacs, 145128 for Rs.8 lacs, 145135 for Rs.20 lacs and 145132 for Rs.8 lacs. The cheques were entrusted to the banker of the complainant for encashment, but Cheques Nos.145135 and 145132 were dishonoured by the banker of the accusedcompany and an intimation in this regard was received vide memo dated 7/8/1995 wherein it was stated accused was not having sufficient funds in his account to make the payment of the cheques issued. The cheques were entrusted to the banker of the complainant for encashment, but Cheques Nos.145135 and 145132 were dishonoured by the banker of the accusedcompany and an intimation in this regard was received vide memo dated 7/8/1995 wherein it was stated accused was not having sufficient funds in his account to make the payment of the cheques issued. Thereafter, the complainant approached the firm of the accused to discharge his liability but a request was made by the accused to present the cheques again in the month of October, 1995 with the assurance that same would be encashed and that he would be able to arrange the funds for encashment for the cheques. Acting on the assurance given by the accused, the cheques were again presented to the banker of accusedcompany for payment in October, 1995 but they were returned again with the remarks Refer to Drawer on the memo of the Bank dated 11/10/1995. Thereafter a registered notice dated 25/10/1995 was sent to the accused to make the payment of the cheques within 15 days of the receipt of the notice but no attention was paid by the accused to the notice. Thereafter the present complaint had been filed. 3. In support of the allegations made in the complaint, Smt. Simarjit Kaur, District Manager, CW/1 and Shri Sanjeev Goyal, CW/2 were examined. Complainant also produced on record documents C/i to C/12. Taking into account the evidence led in support of the complaint filed, the learned Magistrate vide order dated 3/8/1996 summoned the petitioneraccused to face trial under Sec.138 of the Act. On appearance before the trial Magistrate, an application was filed by the accused for discharge and dismissal of the complaint on the ground that notice issued by the complainant was illegal as it had been issued beyond the period of 15 days prescribed and the cheques in question were presented twice although cause of action had accrued to the complainant when cheques were dishonoured by the banker of the accused on presentation on the first occasion and for that reason, no cognizance should have been taken by the Magistrate on the complaint filed. The application filed by the accused was dismissed by the Trial Judge on 7/11/1998. The application filed by the accused was dismissed by the Trial Judge on 7/11/1998. Aggrieved by the said order, accused filed revision and the same came to be dismissed in Criminal Revision No.2 of 4/3/1999 by the Additional Sessions Judge, Patiala as per the order dated 15/11/1999. While ordering the return of the record of the Trial Court, direction was given to the parties to appear before the Trial Court on 11/12/1999. The file was received by the Subdivisional Judicial Magistrate, samana on 16/12/1999 from the Appellate Court and notice to the parties was ordered to be issued for 8/1/ 2000. On that day, none had put in appearance on behalf of the complainant, consequently, the complaint was dismissed for want of prosecution and the accused was discharged. Hence the present petition. 4. I heard Counsel representing the parties at length. 5. While seeking quashing of the order dated 8/1/2000 passed by the Subdivisional Judicial Magistrate, Samana it was strenuously contended by the Counsel representing the petitioner that specific direction was given to the parties by the Appellate Court to appear before the Trial Court on 11/12/1999. But on that day, case was not listed in the cause list and on confirmation by the Counsel for the petitioner from the official of the Court concerned, he was informed that file had not been received from Patiala and on receiving the file, fresh notice would be issued to the petitioner. Thereafter no notice was received by the petitioner regarding the date of hearing fixed in this case as 8/1/2000. On 22/1/2000 complainant as well as his Counsel came to know from the Ahimad of the Court that the present complaint had been dismissed in default on 8/1/2000 on account of non-appearance of the petitioner. Under these circumstances, it was urged by him that non-appearance, of the comp-lainant was neither intentional nor wilful as he has no knowledge of the date of hearing fixed in this case as 8/1/2000 and for that reason, no appearance could be put in by the petitioner before the Court on that date. Additionally, it was submitted by him that no meaningful proceedings was to take place on that date and only the presence of the parties was required to be recorded. Therefore, dismissal of the complaint by the trial Magistrate was wholly unjustified. Additionally, it was submitted by him that no meaningful proceedings was to take place on that date and only the presence of the parties was required to be recorded. Therefore, dismissal of the complaint by the trial Magistrate was wholly unjustified. It was pointed out that even if the order dated 8/1/2000 passed by the Sub-Divisional Judicial Magistrate is construed as an acquittal, this Court has got ample power to treat this petition as an appeal or this Court can exercise the jurisdiction under Sec.482 of the Code or Article 227 of the Constitution of India so as to correct the illegality committed by the trial Magistrate in dismissing the case. In support of the stand taken, reliance was placed on several cases noticed herein-after. In Duni Chand, Member Panchayat and others V/s. Savitri Devi , it was laid down that where a revision was filed before the Sessions Court against conviction, the Sessions Court can treat the revision as an appeal and power vested in the High Court under Sec.401 (5) of the Code can be exercised by Sessions Court in view of the provisions contained in Sec.399 of the Code. In Murari Lal V/s. Modan Lal and others, it was observed that where complaint is dismissed in default, the petition under Sec.482 of the Code challenging the said order of the Magistrate is maintainable. In Ajay Khurana V/s. Anil Cloth House through Prop. Sh. Anil Kumar3, the case was fixed for arguments but the complainant did not appear on the date fixed and the Magistrate dismissed the complaint in default. While setting aside the order of the Magistrate, it was observed that Magistrate should have passed the order on merits for summoning the accused or otherwise and should not have dismissed the complaint in default. In The State of Haiyana V/s. Mansa Ram, it was observed that amendment of the proviso to Sec.247 of the Code in 1955 has widened the Magistrates power of proceeding with the case despite the absence of complainant and this power can be exercised even in the case of private complaint though no application is made for dispensing with his aliendance and the Magistrate should not dismiss a complaint merely because of absence of the complainant but must apply his mind as to whether complainants attendance can be dispensed with. In that case, the order of acquittal passed was set aside, the case was remanded to the Magistrate to try the case in accordance with law. In Shiv Kumar V/s. Mohd. Saghir, the complaint filed under Sec.138 of the Act was dismissed in default for non- appearance of the complainant. While setting aside the order so passed, it was laid down that complainant and his Counsel had been appearing for four years and merely because the complainant could not put in appearance on one hearing, the complaint should not have been dismissed in default. It was held that the order so passed by the Magistrate is not a judicial exercise of discretion vested in him under Sec.256 of the Code. In The Assodated Cement Co. Ltd. V/s. Keshvananc , the question of dismissal of the complaint in default came under consideration by the Apex Court and in paras 16 and 17 of the order, it was observed as under: 16. Reading the section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned the Court is free to dismiss the complaint, acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.17. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.17. When considering the situation of this case as on 24/8/1996, from the facts narrated above, we have no manner of doubt that the Magistrate should have resorted to the axing process, particularly since the complainant was already examined as a witness in the case besides examining yet another witness for the prosecution. 6. In the above mentioned case, the order of the Magistrate acquitting the accused and that of the High Court maintaining the order, was set aside and it was directed that the prosecution should proceed from the stage where it had reached before the order of acquittal has been passed. 7. Counsel representing the respondent while opposing the submission made, mainly contended before me that the petitioner had deliberately not put in appearance on 8/1/2000 and thus, the Magistrate was fully justified in dismissing the complaint. In order to appreciate the submission made, it is necessary to notice the order of the trial Magistrate passed on 8/1/2000 which reads as under: present: None of the complainant. Accused on bail with Counsel. None has put in appearance on behalf of the complainant. Case called several times during the day. It is already 3.30 p. m. I have exhausted my cause list for today. It appears that the complainant is not interested in prosecution of the case. The case is legally compoundable as such, the complaint is ordered to be dismissed in default for want of prosecution. As accused is on bail, his bail bond and surety given stands discharged. Record be filed. Announced 8/1/2000. Sd!sub divisional Judicial Magistrate, samana. 8. I have already noticed earlier that as per direction of the Appellate Court, the parties were directed to appear before the Trial Court on 11/12/1999. On that date, file was not received by the Trial Court. Rather the file was taken up by the trial Magistrate on 16/12/1999 suo motu when it was received from the Appellate Court. Obviously none of the parties was present on that day and for that reason, notice was issued to the parties for 8/1/ 2000. On that date, file was not received by the Trial Court. Rather the file was taken up by the trial Magistrate on 16/12/1999 suo motu when it was received from the Appellate Court. Obviously none of the parties was present on that day and for that reason, notice was issued to the parties for 8/1/ 2000. The reading of the impugned order dated 8/1/2000 would reveal that learned trial Magistrate had nowhere recorded that notice sent in pursuance of the order dated 16/12/1999 had been served upon the complainant. Before passing the order, it was duty of the trial Magistrate to have ensured that notice sent by the Court had been duly served upon the complainant. This duty had not been discharged by the trial Magistrate. Another reason stated in the order viz, the complainant appears to be not interested in prosecution of the case is not based on record because it is manifest from the file of the case that complaint was instituted in the Court of Sub Divisional Judicial Magistrate, Samana on 25/11/1995. The accused was ordered to be summoned under Sec.138 of the Act as per order dated 3/8/1996 and thereafter on appearance of the accused, bail was granted on 14/9/1996. Thereafter the case came to be posted on several dates. Thereafter the complaint was dismissed by the Trial Court and that order was set aside by the Appellate Court. Thus it cannot be said that the complainant was not serious in pursuing the complaint. The other reason which influenced the Magistrate to pass the impugned order is that the offence is compoundable which is not borne out from the provisions of the Act. Moreover, in Rajneesh Aggaiwal V/s. Amit. Bhaiia , it was laid down that even where the accused deposit the cheque amount in Court, it would not save the accused and criminal proceedings cannot be quashed. It is clear from the record that the case was not posted for evidence of the complainant, rather it was for appearance of the complainant as well as of the accused on 8/1/ 2000. Thus, presence of the complainant was not necessary because the case was not fixed for recording evidence of the complainant. In the given circumstances, observation made in The Assodated Cement Co. Ltd. s case (supra) of the Apex Court would apply to the facts of the present case. 9. Thus, presence of the complainant was not necessary because the case was not fixed for recording evidence of the complainant. In the given circumstances, observation made in The Assodated Cement Co. Ltd. s case (supra) of the Apex Court would apply to the facts of the present case. 9. The matter relating to the issue raised in the present petition had also come before me in another case, Sant Lal Bhatia, V/s. City Credit and Leasing Company, Hisar , wherein dealing with the issue raised in that petition, it was observed in paras 8 to 11 as under: "8. Counsel for the petitioner has stated that the Additional Sessions Judge has given unjustified reasons in his order dated 7/3/2002 while setting aside order dated 10/7/2000 passed by the Judicial Magistrate 1st Class, Hisar. It was contended that the non-availability in law of a remedy to file a fresh complaint under Sec.138 of the Act, is no ground to allow the complainant to continue the proceeding indefinitely; the complainant was duty bound to produce evidence in support of the accusations made in the complaint and he having failed to produce any evidence on the date fixed or put in appearance without any sufficient cause, the Judicial Magistrate was fully justified to dismiss the complaint. This fact according to the Counsel has been totally ignored by the learned Additional Sessions Judge. Another legal plea taken by him is that revision against the order of discharge was not maintainable because the order of discharge has to be construed as an order of acquittal and the only remedy available to the complainant was to file an appeal under Sec.378 (5) of the Code. In this regard, support was sought from the observations made in Raja V/s. State of Maharashtra and another, 2000 (2) Criminal Court Judgments 88 and Gurdev Singh V/s. State of Punjab, 1994 (1) Criminal Court Judgment 592: 1994 (1) RCR (Cr1.) 341 (Pandi-I ).9. There is no quarrel with the proposition of law laid down in the abovementioned cases. Manifestly, in this case, criminal complaint came to be filed by the complainant because the petitioneraccused had failed to honour the cheque issued by him. Sec.138 of the Act was inserted in the Act by the Banking Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 (66 of 1988) which came into force with effect from 1/4/1989. Manifestly, in this case, criminal complaint came to be filed by the complainant because the petitioneraccused had failed to honour the cheque issued by him. Sec.138 of the Act was inserted in the Act by the Banking Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 (66 of 1988) which came into force with effect from 1/4/1989. The Parliament in its wisdom had chosen to bring this section on the statutebook in order to introduce financial discipline in business dealings. Prior to insertion of Sec.138 of the Act, a dishonoured cheque left the person aggrieved with the only remedy of filing a claim. The object and purpose of bringing a new provision in the Act was to make the persons dealing in commercial transactions work with a sense of responsibility and for that reason, under the amended provisions of law, lapse on their part to honour their commitment renders the person liable for criminal prosecution. Therefore, while taking into account the stand taken by the petitioner, the above object of the enactment of Sec.138 of the Act and the circumstances under which the complainant could not appear when the complaint was dismissed by the learned Magistrate, as such cannot be ignored. Petitioner has placed on record the grounds of revision filed by the respondent while assailing order dated 10/ 7/2000 passed by the Judicial Magistrate. It was specifically stated in the grounds for revision that on 10/7/ 2000 when the complaint was dismissed in default, another complaint titled as C. C. L. Co. V/s. Satbir was also fixed in the Court of Additional Chief Judicial Magistrate. It was also mentioned by the complainant that he had appeared on that date in the Court of Additional Chief Judicial Magistrate, Hisar. In addition, it was mentioned by him that he was present in Court since morning and after attending the Court of Additional Chief Judicial Magistrate, he came back to the Court and came to know that his complaint had been dismissed. He had further stated that the absence of the complainant was not intentional though the learned Additional Sessions Judge has not adverted to this explanation.10. The Judicial Magistrate while acting under Sec.256 of the Code has also taken into account that the powers vested have to be exercised in the interest of justice. He had further stated that the absence of the complainant was not intentional though the learned Additional Sessions Judge has not adverted to this explanation.10. The Judicial Magistrate while acting under Sec.256 of the Code has also taken into account that the powers vested have to be exercised in the interest of justice. In the present case, the Magistrate has not recorded any reason as to why he did not deem it proper to adjourn the hearing of the case to some other date. The Magistrate has been specifically empowered to dispense with the personal attendance of the complainant and proceed with the case. The efforts of the trial Magistrate should be to dispose of cases on merits instead of dismissing them in default. In this case, the complainant had been pursuing his complaint from 16/9/1988 onwards and only on the date fixed i. e.10/7/2000 he was not present at the time when the case was called and was present in the Court of Additional Chief Judicial Magistrate in another case. Thus, under the circumstances of the case, the Magistrate was wholly unjustified in dismissing the complaint for want of prosecution.11. Coming to the other plea raised by the Counsel for the petitioner that order of the discharge amounted to acquittal and it could only have been challenged in this Court and that in the revision petition filed by the respondent the Additional Sessions Judge could not have set aside order dated 10/7/2000 of the Magistrate, as has been done vide order dated 7/3/2002 as the revision petition was not maintainable would not stand in the way of this Court to exercise power vested under Sec.482 of the Code to take correctional measures after order dated 10/7/2000 has come to its notice because continuance of this order of the Magistrate would cause miscarriage of justice. Therefore, order of the Magistrate dated 10/7/2000 being illegal has to be set aside and cannot be upheld as sought to be contended by the Counsel for the petitioner. It is ordered accordingly. The trial Magistrate shall proceed to decide the case on merits. Petition stands disposed of accordingly. " 10. Observation made in the abovementioned case completely covers the stand taken by the parties before me noticed above. The ratio of the abovementioned order applies to the facts of the present case. It is ordered accordingly. The trial Magistrate shall proceed to decide the case on merits. Petition stands disposed of accordingly. " 10. Observation made in the abovementioned case completely covers the stand taken by the parties before me noticed above. The ratio of the abovementioned order applies to the facts of the present case. From whatever angle it is examined, the impugned order dated 8/1/2000 of the learned Magistrate cannot be sustained and the same is accordingly set aside. The trial Magistrate shall proceed with the case in accordance with law. Petition stands disposed of accordingly. Petition allowed.