1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 40953-M of 2007 Date of Decision: 18.11.2008 *** Vijay Pal .. Petitioner Vs. Smt. Jyoti .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. J.S. Saneta, Advocate for the petitioner. Mr. A.S. Manaise, Advocate for the respondent. ARVIND KUMAR, J. Through the instant petition, a challenge has been laid to the orders dated 26.8.2006 and 9.1.2007 whereby the learned trial court dismissed for non-prosecution the complaint of the petitioner filed under Section 138 of Negotiable Instruments Act against respondent and also dismissed his application for restoration of his complaint, being not maintainable, respectively. Learned counsel for the petitioner has contended that it was mistaken belief of the petitioner that his presence is not necessary on each and every date of hearing, which has resulted into dismissal of his complaint, whereas earlier he used to appear on each and every date of hearing. It has also been contended that the amount involved in the case is Rs.1,20,000/- and if the complaint is not restored, then the petitioner will suffer an irreparable loss. The perusal of Section 256 Cr.P.C. makes it abundantly clear that in a situation of non-appearance of the complainant, it is open for the Court to either dismiss the complaint or to adjourn the hearing of the case if he thinks it proper. Thus, there is no hard and fast rule that the absence of complainant would amounts to dismissal of complaint. The Court, if think 2 proper, may proceed with the case. In the instant case, although the notice was issued to the complainant on the last date of hearing, but it is not clear as to whether the same was returned back served or unserved. No benefit could be drawn by the complainant by not appearing in the Court intentionally as it is his own complaint involving dispute of dishonouring of cheques for an amount of Rs.1,20,000/-. It is always in the interest of justice that the matter should be adjudicated on merits. Thus, the impugned order passed by the court below seems to be harsh in the circumstances. But since the petitioner was somewhat negligent in pursuing his case in a right perspective, he has to compensate the respondent by paying the cost. In view of this, the instant petition is allowed and the impugned orders dated 26.8.2006 and 9.1.2007 passed by the learned trial court are set aside subject to payment of Rs.20000/- as cost to respondent. The matter is remitted back to the trial court with a direction to restore the complaint to its original number and then to further proceed with the case right from the stage, from where it was dismissed and dispose it of expeditiously, on merits that too on payment of cost by the petitioner to the respondent- accused. The parties through their counsel are directed to appear before the Court below on 15.12.2008. (ARVIND KUMAR) JUDGE November 18,2008 Jiten