Criminal Misc. No. 36522 -M of 2006 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Misc. No. 36522 -M of 2006 Date of decision : January 30, 2008 Purushotam Mantri .....Petitioner Versus Vinod Tandon alias Hari Nath Tandon ...Respondent 2. Criminal Misc. No. 36524 -M of 2006 Purushotam Mantri .....Petitioner Versus Vinod Tandon alias Hari Nath Tandon ...Respondent 3. Criminal Misc. No. 36526 -M of 2006 Purushotam Mantri .....Petitioner Versus Vinod Tandon alias Hari Nath Tandon ...Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Sanjiv Gupta, Advocate for the petitioner. None for the respondent. RAJESH BINDAL J. 1. This order will dispose of three Criminal Misc. Nos. 36522-M of 2006, 36524-M of 2006 and 36526-M of 2006 as the common question of law with similar facts are involved in these petitions. 2. The facts have been extracted from Criminal Misc. No. 36522- M of 2006. 3. The challenge in the present petition is to the order dated January 23, 2002 whereby complaint filed by the petitioner under Section Criminal Misc. No. 36522 -M of 2006 -2- **** 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) was dismissed in default and order dated March 31, 2005 passed by the Additional Chief Judicial Magistrate, Sirsa whereby application filed by the petitioner for restoration of the complaint was dismissed as not maintainable. Further challenge is to the order dated May 15, 2006 passed by learned Additional Sessions Judge, Sirsa whereby order passed by the Additional Chief Judicial Magistrate, Sirsa was upheld. 4. Briefly the facts are that petitioner filed complaint under Section 138 of the Act against respondent, who was directed to be summoned vide order dated July 18, 1991. But respondent could not be served through summons and warrants of arrest and ultimately he was declared a proclaimed offender vide order dated July 31, 1998. Thereafter on application of the petitioner, warrants of arrest were issued against respondent several times but the same were received back unserved. However, vide order dated January 23, 2002 passed by Addl. Chief Judicial Magistrate, Sirsa, the complaint was ordered to be dismissed in default, since no one turned up on behalf of the petitioner. Vide order dated March 31, 2005, the application for restoration of the complaint was also dismissed being not maintainable. In revision, order dated March 31, 2005 was upheld by learned Additional Sessions Judge, Sirsa. 5. Learned counsel for the petitioner submitted that in the complaint case, respondent was declared as proclaimed offender under Sections 82 and 83 of the Code of Criminal Procedure (for short “the Code”) vide order dated July 31, 1998. Thereafter statement of serving constable was recorded stating therein that the accused did not have any moveable or immoveable property in his name. Vide order dated July 31, 1998, learned Additional Chief Judicial Magistrate, Sirsa consigned the file to record with the observation that when the presence of accused, who had already been declared as proclaimed offender, cannot be procured by way of attachment of property, the file be put up as and when the accused is produced by the police. However, subsequently on January 23, 2002 the complaint was dismissed in default merely on account of non appearance of the petitioner on one date. Criminal Misc. No. 36522 -M of 2006 -3- **** 6. 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 non-appearance on the date fixed. For the purpose he has relied upon the observations made by this Court in Jitender Bajaj Vs. State (U.T.Chandigarh) and others 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.” 7. If the facts of the present case are examined, it would be too harsh on the petitioner to non suit him merely for his non appearance on one date. The Courts are not to dispense justice with closed eyes. Here is a case where the petitioner filed three complaints against respondent but was not able to serve him as he is based in Kolkata. He could not even find details of his property after the respondent was declared as proclaimed offender. Criminal Misc. No. 36522 -M of 2006 -4- **** However, merely because of his non appearance on one date, his complaints were dismissed. The net effect of the entire proceedings is that it is the petitioner/complainant who has been punished as against respondent, who had been successfully evading service of summons and appearance before the Court to face trial. 8. In the above factual matrix, I find that the non-appearance of the petitioner/complainant on the date fixed was not intentional accordingly the order dated January 23, 2002 passed by Additional Chief Judicial Magistrate, Sirsa is set aside and the complaint filed by the petitioner is restored to its original number. The petitioner is directed to appear before the Court below on February 29, 2008 for further proceedings. 9. Accordingly, the petitions are allowed. January 30, 2008 (Rajesh Bindal) Pka Judge