RAJESH BINDAL,J - (1.) CHALLENGE in the present petition is to the order passed by learned Additional Chief Judicial Magistrate, Faridabad dated March 04, 2004 whereby the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") was dismissed in default. In addition to this, the challenge is also to the order dated August 18, 2006 passed by Judicial Magistrate Ist Class, Faridabad vide which application for restoration of the complaint was dismissed as not maintainable.
(2.) BRIEFLY the facts are that the petitioner filed a complaint under Section 138 of the Act against respondents on account of dishonour of cheque for Rs. 1,05,200/- due to insufficient funds. After recording the preliminary evidence, the complaint was fixed for further proceedings on March 04, 2004. On the date fixed neither the petitioner nor his counsel appeared and the same was dismissed in default. Even the application for restoration of the complaint filed by the petitioner was also dismissed. The contention is that petitioner as well as his counsel could not appear on the date fixed for the reason that date was wrongly noted as March 09, 2004 as against March 04, 2004. In order to prove, he produced even copy of the diary and the file cover. He submitted that after filing of the complaint, petitioner had been appeared on all the dates and merely because of his non appearance on one date he should not have been penalized. However, he admits that application for restoration was not maintainable before the Court below. On the other hand learned counsel for the respondent No. 5 submitted that present petition for restoration of the complaint, which was dismissed in default is not maintainable as the petitioner had remedy of filing application for leave to appeal before this Court.
(3.) THIS Court while considering an identical issue in Criminal Misc. No. 36522-M of 2006 (Purushotam Mantri v. Vinod Tandon alias Hari Nath Tandon) vide judgment dated January 30, 2008 opined as under :- "Learned counsel for the petitioner did not dispute that application filed by the petitioner before the Court below for recalling the order was not maintainable and accordingly the same was rightly dismissed by the Court below. However, submission is that this Court under Section 482 of the Code can certainly direct restoration of the complaint, which was dismissed in default if sufficient reason is found for his nonappearance on the date fixed. For the purpose he has relied upon the observations made by this Court in Jitender Bajaj v. State (U.T. Chandigarh) and others, 2005(3) RCR(Criminal) 69 : 2005 Crl. L.J. 3136, which are reproduced below :- "........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." ;