IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No. M-24586 of 2008 Date of Decision: 28 - 1 - 2009 Raj Kumar .....Petitioner v. Rajinder Singh .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Deepak Arora, Advocate for the petitioner. Mr.Munish Bhardwaj, Advocate for the respondent. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) In the present case, petitioner-complainant had instituted a complaint under Section 138 of the Negotiable Instruments Act, titled as `Raj Kumar v. Rajinder Singh'. Summoning order was passed and the respondent-accused has caused appearance. On 14.1.2008 due to non appearance of the petitioner-complainant, complaint was dismissed in default. Counsel for the respondent has relied upon Section 256 of the Code of Criminal Procedure to contend that in a summons case, due to non appearance of the complainant if complaint is dismissed, the same shall amount to acquittal of the respondent-accused and only remedy available to the petitioner-complainant is to file an application under Section 378(4) Crl.Misc.No.M-24586 of 2008 [2] Cr.P.C. seeking leave to appeal against acquittal. Counsel for the petitioner submit that complaint was dismissed in default on 14.1.2008. He has filed the present petition on 22.4.2008. Counsel for the petitioner has relied upon a Single Bench judgment of this Court in Bhagwant Singh v. M/s Suresh Steel Industries, 2003(1) Criminal Court Cases 21 (P&H) to contend that this Court has restored the complaint in Bhagwan Singh's case, though it was held that under Section 256 Cr.P.C. the Magistrate is empowered to exempt appearance of the complainant but it was not taken into consideration that dismissal of complaint will result into acquittal of the accused. Therefore, this judgment is of no help to the petitioner. Since due to dismissal of the complaint, respondent has been acquitted, counsel for the petitioner, if so advised, can file an application seeking leave to appeal under Section 378(4) Cr.P.C.. He can also pray for condonation of delay on the ground that he had not filed the petition under the appropriate section. The present petition is disposed off. ( KANWALJIT SINGH AHLUWALIA ) January 28, 2008. JUDGE RC