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2012 DIGILAW 2174 (RAJ)

Dinesh Jeenagar v. Babulal Samariya

2012-11-05

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties. The instant misc. petition has been preferred by the petitioner/complainant challenging the order dated 9.3.2010 passed by the Special Judicial Magistrate (N.I. Act Cases) No.2, Udaipur rejecting the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, in default and the order dated 2.5.2012 passed by the Sessions Judge, Udaipur rejecting the revision filed by the petitioner against the said order.2-3. The contention of the learned counsel for the petitioner is that the petitioner was not at fault in the matter because on the date fixed for hearing before the trial court i.e. on 30.9.2009, the matter was transferred to another court and as the petitioner was not aware about the transferee court, he could not appear before the court for giving evidence. He submits that prior to that, the petitioner was not responsible for the delay in the matter because the matter was mostly adjourned as the lawyers were not attending the Court as they were observing strike. He thus submits that the order dated 9.3.2010 rejecting the complaint filed by the petitioner, the order dated 3.1.2012 rejecting the application for restoration of the complaint and the order dated 2.5.2012 rejecting the revision be quashed.4. Learned counsel for the accused respondent no.1 opposes the submissions made on behalf of the petitioner.5. After considering the arguments advanced at the bar and keeping in view the peculiar facts of the case particularly the fact that initially the case was going in the Court of C.J.M., Udaipur and thereafter, the same was transferred to the Court of Special Judicial Magistrate (NI Act Cases) No.2, Udaipur and in that Court, the complainant did not appear on 9.3.2010 on which date, the complaint was dismissed, this Court is of the opinion that the absence of the complainant on a particular date cannot be held to be a justifiable reason for the dismissal of the complaint.6. Resultantly, the present misc. petition succeeds and the orders dated 9.3.2010 and 3.1.2012 passed by the Special Judicial Magistrate (N.I. Act Cases) No.2, Udaipur and the order dated 2.5.2012 passed by the Sessions Judge, Udaipur are quashed. The complaint is directed to be restored to its original number. Resultantly, the present misc. petition succeeds and the orders dated 9.3.2010 and 3.1.2012 passed by the Special Judicial Magistrate (N.I. Act Cases) No.2, Udaipur and the order dated 2.5.2012 passed by the Sessions Judge, Udaipur are quashed. The complaint is directed to be restored to its original number. Both the parties shall appear before the concerned court on or before 15.1.2013 whereafter, the court below shall fix the next date and shall proceed expeditiously in the matter.Petition allowed. *******