INDERJIT BHICKTA Vs. MAHESH KUMAR

JUDGEMENT

(1.) THE order dated 26.2.2009, passed in Complaint No. 26/3 of 2007 by the learned Chief Judicial Magistrate, Shimla, dismissing the complaint of the Appellant, has been assailed in the present appeal.

(2.) THE facts, in brief, are that the Appellant had filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 against the Respondent. The learned Chief Judicial Magistrate issued process against the Respondent. In October, 2008, the learned Chief Judicial Magistrate was on leave and the case was posted for proper order. The counsel for the Petitioner did not appear in the case so also the Petitioner and therefore, notice was issued to the Petitioner for 26.2.2009. The Petitioner could not inform his counsel nor he appeared in the Court on 26.2.2009, the Petitioner remained under the impression that the case had been fixed on 27.2.2009. On 27.2.2009, the Petitioner had come to the Court and found that his case was not listed on 27.2.2009. The Petitioner was not having the notice issued for 26.2.2009, therefore, on enquiry made by his counsel, it was found that the case was listed on 26.2.2009 and was dismissed in default and the Respondent was acquitted. In these circumstances, the appeal was filed.

(3.) THE Section 256 of the Code provides that on the date appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Once the accused has been acquitted, the remedy of appeal is available to the Petitioner as held in H.P. Agro Industries Corporation Ltd. V. M.P.S. Chawla 1997 (2) Cri 591.