NIRMALJIT KAUR, J. - (1.) THE prayer in the present petition is for setting aside the Order dated 13.03.2009 passed by the Judicial Magistrate, 1st Class, Jagadhari, whereby, the complaint filed by the petitioner was dismissed in default and Order dated 02.07.2009 passed by the Additional Sessions Judge, Yamuna Nagar, whereby, the revision filed by the petitioner was dismissed. While praying for setting aside the said Order, learned counsel for the petitioner sub- mitted that the Judicial Magistrate 1st Class, Jagadhari after recording the evidence of the petitioner vide Order dated 23.11.2007 summoned the respondent to face trial under Section 138 of the Negotiable Instruments Act. As the respondent failed to appear despite summoning, therefore, his warrants of arrest was issued by the Court of Judicial Magistrate, 1st Class, Jagadhari. When the case came up for hearing on 13.03.2009, the Judicial Magistrate 1st Class, dismissed the complaint filed by the petitioner in default. The Additional District Judge, Yamuna Nagar vide Order dated 02.07.2009 dismissed the revision filed by the petitioner against the Order dated 13.03.2009 passed by the Judicial Magistrate 1st Class, Jagadhari on the ground that the revision petition is not maintainable.
(2.) NOTICE of motion was issued. No one has come present on behalf of re spondent No.2, despite service. Thus, the present petition has not been contested. This Court in the case of Purushotam Mantri vs. Vinod Tandon alias Hari Nath Tandon reported as 2009(1) RCR (Criminal) 442 while relying on the judgment in case of Jitender Bajaj v. State (U. T Chandigarh) and others reported as 2005(3) RCR(Crl) 69, held as under :- "..............When the Magistrate, in a summon case, has dismissed the complaint and acquitted the accused due to absence of the complainant on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complainant shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same."
(3.) THUS , there is no dispute that the impugned Order dated 13.03.2009 passed by the Judicial Magistrate, 1st Class, Jagadhari, vide which, the complaint filed by the petitioner was dismissed in default, can be set aside in the proceedings under Section 482 of the Cr.P.C. Section 256 of the Cr.P.C reads as under :- "256. Non-appearance or death of complainant - (1) If the summons has been issued on complaint and on the day 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 notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death." ;