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2007 DIGILAW 286 (MP)

Hind Syntex Ltd. v. Shree Mangal

2007-03-12

S.S.DWIVEDI

body2007
JUDGMENT 1. The applicant has preferred this appeal under section 378 of the Criminal Procedure Code, feeling aggrieved by the dismissal of the Original Criminal Case No.1 066/0 1, filed on behalf of the appellant under section 138 of the Negotiable Instruments Act (hereinafter referred to as "N.1. Act" for short), by CJM, Dewas, in default of appearance of the complainant. 2. Briefly stated facts of the case are that the appellant/complainant has filed a complaint under section 138 of the N.1. Act against the respondents No. 1 and 2 before the CJM, Dewas which is registered as Criminal Case No. 1066/01. This complaint has been dismissed by the trial Court on 3.2.2005 in the absence of the complainant. Feeling aggrieved by which the complainant has preferred Criminal Revision No. 20/05, before the II ASl, Dewas, the revisional Court allowed the revision and impugned order passed by the trial Court is set aside, against that order the respondents No.1 and 2 preferred Criminal Revision No. 419/05 before this Court and this Court by order dated 26.7.2006 allowed the revision preferred by the respondents and held that the revision is not maintainable against the impugned order of acquittal passed by the CJM. Hence, the complainant has filed this appeal under section 378 of the Criminal Procedure Code, after obtaining leave to appeal against the order of acquittal passed by the trial Court. 3. Having heard the learned counsel for the parties and perused the record. 4. It is submitted by the learned counsel for the complainant that the complainant was present in person before the Court but due to some misunderstanding it has been reported that the complainant is absent, hence the trial Court has dismissed the complaint in the absence of the complainant. Therefore, prayed for setting aside of the impugned order of dismissal passed by the trial Court. 5. In reply, learned counsel appearing for the respondents supported the impugned order and prayed for dismissal of the appeal. 6. On perusal of the entire proceedings, it is apparent that the case is fixed for evidence on 9.2.2005. Therefore, prayed for setting aside of the impugned order of dismissal passed by the trial Court. 5. In reply, learned counsel appearing for the respondents supported the impugned order and prayed for dismissal of the appeal. 6. On perusal of the entire proceedings, it is apparent that the case is fixed for evidence on 9.2.2005. On this date at 11.00 a.m., in the Court, the Court Reader informed that the case will be called later on but at 12:30 p.m., the case has been dismissed in default of appearance but on the same day complainant appeared before the Court and marked his presence and requested for taking up of the case, but the learned Magistrate has already passed the order for dismissal of the case, therefore, could not restore the complaint in its number. 7. In view of the aforesaid facts, that the complainant appeared before the Court concerned in the later part of the day therefore, the dismissal of the complaint appears to be erroneous and this order of dismissal of complaint is liable to be set aside. 8. Resultantly, the appeal preferred by the appellant is allowed. The impugned order for dismissal of the complaint passed by the trial Magistrate on 3.2.2005 is set aside and the original case is remanded back to the trial Court with the direction to re-register the case under section 138 of the N.I. Act and decide the case on merits after taking evidence of both the parties. Both the parties are directed to remain present before the CJM, Dewas on 23.4.2007 for further proceedings in the case concerned. 9. With this, the appeal is disposed of.