JUDGMENT 1. - Heard learned counsel for the petitioner. 2. In this case, notice was issued by this Court on the petitioner on 17.7.2004 and was duly served upon non-petitioner No. 2; but, despite service, none has appeared for and on behalf of non-petitioner No. 2. 3. It is contended by learned counsel for the petitioner that a complaint was filed by the petitioner under Section 138, Negotiable Instruments Act before the Civil Judge (Junior Division) & Judicial Magistrate, Chittorgarh wherein charge was framed against non-petitioner No. 2 and the Trial Court proceeded to record the evidence of the prosecution witnesses. He submits that on 27.4.2004 the case was listed for evidence of the defence. On that day, it is submitted, the complainant was out of station and the complainant's counsel was busy in another Court, therefore, he could not appear when the case was called. Learned counsel for the petitioner submits that later on when he went to the Court he was informed that his case was dismissed on default; and, therefore, he moved application for restoration of the case but his application was not decided by the Trial Court. Learned counsel for the petitioner submits that now the petitioner is challenging order dated 27.4.2004 whereby the complaint was dismissed due to non-appearance of the petitioner though, on the same day, complainant's counsel moved application for restoration but the same was not decided by the Trial Court. 4. Learned counsel for the petitioner invites attention of the, Court towards judgment of the Supreme Court in the case of Mohd. Azeem v. Venkatesh & Anr., reported in 2003 CrLR (SC) 211 , wherein, in similar circumstances, the Apex Court held that it would be unjust attitude resulting in failure of justice, if only for the absence of the complainant on one day, the complaint is dismissed and the Court refuses to restore the complaint even when sufficient cause for the absence is shown. 5. I have perused the cited judgment. This petition is allowed. Impugned order dated 27.4.2004 is set aside and the complaint is restored. The learned Magistrate is directed to proceed with the trial in accordance with law after issuing notice to the accused non-petitioner.Petition allowed. *******