ORDER : 1. Heard Mr. S. C. Biswas, learned counsel for the petitioner and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent No. 1. 2. By this petition under Sections 397/401 read with Section 482 Cr.P.C., the petitioner has prayed for setting aside and quashing/ modification of the impugned order, dated 17.03.2018, passed by the learned Addl. Chief Judicial Magistrate, Sonitpur at Tezpur in C. R. Case No. 268/2011, wherein, the said learned trial Court recorded that the complainant/petitioner, herein, was not willing to proceed with the case and thereby dismissed the case for non-prosecution. 3. The complainant/petitioner’s case, in a nut-shell, is that he preferred the aforesaid complaint case against the respondent No. 2, herein, alleging, that the latter purchased MS TMT bars, on credit from the petitioner herein and an outstanding balance of Rs.3,49,667/- only remained outstanding to be paid by the respondent No. 2. On 20.05.2011, the respondent No. 2 went to the shop of the complainant/ petitioner, situated at Rangapara town and asked for verification and settlement of his account. Accordingly, the accused-respondent No. 2 herein verified the account and it transpired that the accused-respondent No. 2 had an outstanding balance of Rs.3,49,667/- only. Thereafter, the accused-respondent No. 2 with a view to discharge his liability issued a post dated cheque in favour of the establishment of the complainant/petitioner, that is, M/S Bhagawati Hardware, vide cheque No. 163810, dated 21.06.2011, of State Bank of India, Rangapara Branch (Account No. 3077828419). The complainant/petitioner contended that on the due date, he presented the said cheque on 21.06.2011 for collection of the cheque amount, but it was dishonoured and returned unpaid by State Bank of India, Rangapara Branch on the same day, that is, 21.06.2011, with a return memo showing ‘insufficient fund’. The complainant/petitioner, therefore, contacted the accused-respondent No. 2 over phone and informed him that the cheque was bounced due to insufficient fund and requested him to make payment at the earliest. The complainant/petitioner, therefore, contacted the accused-respondent No. 2 over phone and informed him that the cheque was bounced due to insufficient fund and requested him to make payment at the earliest. However, the accused-respondent No. 2 did not respond, for which the complainant/petitioner issued a statutory notice to the accused-respondent No. 2, on 07.07.2011, by registered post through his engaged Advocate demanding the payment of the aforesaid cheque amount but the said notice was returned back to the learned engaged Advocate of the complainant-petitioner on 16.07.2011 with a note that ‘Addressee absent, so return to sender’ showing in the envelope of the notice that the accused was found absent on 08.07.2011, 09.07.2011, 11.07.2011, 12.07.2011 & 13.07.2011 respectively. 4. The complainant-petitioner further contended that being aggrieved, a complaint was filed before the Court of the learned Chief Judicial Magistrate, Sonitpur at Tezpur, vide Complaint Case No. 268/2011 which was made over to the Court of learned Addl. Chief Judicial Magistrate, Sonitpur, Tezpur for disposal. However, the learned engaged counsel of the complainant-petitioner herein did not conduct the case properly as he did not take steps as directed by the learned trial Court and as a result of which, the case was dismissed for non-prosecution vide the impugned order, dated 17.03.2018. According to the complainant-petitioner, his maternal uncle expired on 05.02.2018, for which he had to leave for his native place in Bihar and stayed there for 2 months. After returning back to Rangapara on 24.03.2018, he came to know that the case was dismissed by the learned Court below due to non-prosecution as his engaged counsel did not take any steps for issuance of Non-Bailable Warrant of Arrest (‘NBWA’, for short) against the accused-respondent No. 2. Accordingly, he applied for a certified copy of the impugned order on 28.03.2018 and got the copy of the said order on 02.04.2018. 5. It is also the contention of the complainant-petitioner herein that he should not be made to suffer for the mistake of his learned engaged counsel who failed to conduct the case properly and as such, prays to give him an opportunity by restoring the said complaint case being C. R. Case No. 268/2011, which was dismissed for non-prosecution by the learned Addl. Chief Judicial Magistrate, Sonitpur at Tezpur and dispose of the same on merit. 6. Mr. Chief Judicial Magistrate, Sonitpur at Tezpur and dispose of the same on merit. 6. Mr. S. C. Biswas, learned counsel for the complainant-petitioner moving the instant petition reiterated the grounds cited in the petition, as stated above. 7. Per contra, Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, strongly opposed the petition on the ground that once the Magistrate dismisses the complaint on the ground of non-prosecution, the same cannot be restored and revived for want of express provision in the Criminal Procedure Code. Ms. Jahan, further submits that the appropriate remedy against dismissal of a complaint for non-prosecution under Section 256 Cr.P.C. lies in appeal only. In this connection, Ms. Jahan has relied upon the judgments rendered by the Hon’ble Supreme Court in MAJ. GENL.A.S.GAURAYA and Another –vs- S.N. THAKUR and Another, reported in (1986) 2 SCC 709 and of this Court in CHANDANA DAS & ORS -vs- SUKUMAR DUTTA & ANR, reported in 2016 (2) GLT 584. 8. The impugned order, dated 17.03.2018, passed in C. R. Case No. 268/2011, reads as herein below extracted: “C.R . Case No. 268/11 order 17/03/2018 Complainant is absent. Ld. Counsel for the complainant has filed hazira. Perusal of the record reveals that case is pending at the stage of appearance of accused person since 7/2/14. That on 7/2/14, 27/5/14 as well as on some other occasions Ld. Counsel for the accused had filed petitions stating, inter-alia, that accused was willing to pay the cheque amount as claimed by the complainant. In-spite of filing such petitions accused had not turned up, for which vide order dated 2/7/14, the then presiding officer directed to issue NBWA against the accused. Perusal of the record reveals that since then several orders were passed directing the complainant to take steps of NBWA against the accused, but complainant not in a single occasion had taken steps. It is a case u/s 138 of NI Act. As per Section 143 (3) of NI Act, trial of the cases under NI Act, shall be conducted expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. The conduct of complainant shows that he is not willing to proceed with the case, as per law, rather he has abused the process of law. The conduct of complainant shows that he is not willing to proceed with the case, as per law, rather he has abused the process of law. It appears that he is trying to recover his dues from the accused in terms of their mutual settlement and has unnecessarily dragged the matter in Court since the very inception of the case. Considering the lack of interest and non cooperation of the complainant towards court procedure case is dismissed for non prosecution”. 9. Perusal of the above impugned order, dated 17.03.2018, reveals that although the complainant-petitioner herein and on the other hand, the case which was filed in 2011 remained pending at the stage of appearance of the accused/ respondent No. 2, herein since 07.02.2014, no coercive step for issuance of NBWA, as per repeated orders of the learned trial Court, was taken against the accused/ respondent No. 2. Justifying the orders for issuing NBWA against the accused/ respondent No. 2, the learned Court observed that the learned counsel representing them, on 07.02.2014, 27.05.2014 and on several other dates, had filed a number of petitions stating that the accused/ respondent No. 2 remained away from personally appearing in the proceeding during the aforesaid period of around 4 (four) years. The learned trial Court rightly observed that as per Section 143 (3) of the N.I. Act, the trial of cases under the said Act, the Court is duty bound to conduct the trial as expeditiously as possible so as to conclude the trial within a period of six months from the date of filing of the case. The learned Court also rightly observed and took a presumption for reason of his indifferent attitude towards expeditious disposal of the ongoing proceeding for years together under Section 138 of the N.I. Act, that the complainant/ petitioner was not interested to proceed with the case and accordingly dismissed the case for non-prosecution. 10. Be it mentioned that in terms of Section 143 of the N.I. Act, an offence under Section 138 is to be tried summarily following the provisions of sections 262 to 265 of Cr.P.C. As the aforesaid offence is to be tried following the summary procedure, the provisions contained in Section 256 of Cr.P.C is applicable. However, the discretion under the aforesaid section has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice. 11. However, the discretion under the aforesaid section has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice. 11. In S. Ramakrishna-vs-Ramy Reddy, reported in (2008) 5 SCC 535 , the Hon’ble Supreme Court observed that the provisions of Section 256 (1) mandate the Magistrate to acquit the accused unless for some reason, he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out. The Hon’ble Supreme Court further observed that the discretion conferred upon the learned Magistrate, however, must be exercised with great care and caution. In S.N. Thakur (Supra), the Hon’ble Supreme Court held that dismissal of a complaint for non-appearance of the complainant or discharge or acquittal of the accused is a final order and in the absence of any specific provision in the Cr.P.C, the learned Magistrate cannot exercise any inherent jurisdiction to restore the complaint to his file by revoking the dismissal order. A second complaint is, however, generally permissible in law if it could be brought within the limitations prescribed in Pramatha Nath Taluqdar Vs-Saroj Ranjan Sarkar, reported in AIR 1962 SC 876 . Similar view was rendered by this Court in Chandana Das (Supra). Therefore, once an order of dismissal is passed, the learned Magistrate becomes functus officio and the complaint cannot be restored. 12. Revisiting the impugned order, it appears that the learned Magistrate, in fact, dismissed the case apparently for non-prosecution, but did not acquit the accused/ respondent No. 2 of the alleged offence under Section 138 of the N.I. Act, that is, simply terminated the proceeding for non-prosecution. The impugned order further shows that conduct of the complainant/petitioner and the accused/respondent No. 2 was not satisfactory and detrimental to the direction of Section 143 (3) of the said Act. The explanation for default of the complainant in taking steps against the accused for years as per repeated orders of the learned Magistrate also appears to be virtually absent. In Assem Shabanli Merchant-vs-Brij Mehra, reported in (2005) 11 SCC 412 , the Hon’ble Apex Court held that when a complaint under Section 138 of the N.I. Act is dismissed for non-prosecution, the impugned order may be recalled so that the complaint can be tried on merits, though there is no such hard-and-fast rule for recalling such orders. 13. In Assem Shabanli Merchant-vs-Brij Mehra, reported in (2005) 11 SCC 412 , the Hon’ble Apex Court held that when a complaint under Section 138 of the N.I. Act is dismissed for non-prosecution, the impugned order may be recalled so that the complaint can be tried on merits, though there is no such hard-and-fast rule for recalling such orders. 13. For the above stated reasons, more particularly, when the said complaint under Section 138 of the N.I. Act was at the initial stage of the proceeding to secure the attendance of the accused/ respondent No.2, the impugned order of the learned Magistrate may be set aside to meet the ends of justice and thereby, the complaint may be restored, on equitable consideration in exercise of the inherent jurisdiction of this Court under Section 482 of Cr.P.C., instead of asking to prefer an appeal. 14. Consequently, the petition stands allowed, and accordingly, the impugned order is set aside and quashed and the complaint is directed to be restored to file subject to payment of Rs.5,000/- (five thousand) towards cost as condition precedent, which shall be deposited by the complainant/petitioner herein with the District Legal Services Authority, Sonitpur at Tezpur on or before 31.08.2018. 15. The learned trial Magistrate shall be at liberty to pass any subsequent orders in the proceeding in question, in accordance with law. It is further directed that the learned trial Court shall make an endeavour to dispose of the matter within a period of three months from the date of restoration of the case. 16. With the above directions, the petition stands disposed of at the motion stage itself.