IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 491-MA of 2009 Date of decision: March 29, 2010 Surender Kumar Duggal Appellant Versus Suchinta Malik Respondent CORAM : HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Kunal Dawar, Advocate for the appellant Mr. Rohit Ahuja, Advocate for the respondent DAYA CHAUDHARY, J. (ORAL) The present appeal has been filed for setting aside order dated 04.07.2009 passed by Judicial Magistrate 1st Class, Faridabad dismissing the complaint of the appellant under Section 138 of Negotiable Instruments Act, 1881 on account of non-appearance of the appellant. Learned counsel for the appellant submits that because of wrong noting of the date, the complainant could not appear before the Court on 04.07.2009 as the appellant has noted the date as 7.7.2009 instead of 4.7.2009. Learned counsel for the appellant further submits that absence of the appellant was not intentional and was on account of bonafide mistake on behalf of the appellant. Learned counsel for the appellant has relied on judgment of this Court in Neh Pal Sharma versus Bijender Singh, 2009(2) RCR (Criminal) 751 and Kulwant Singh vs. Balhar Singh, 2007(1) RCR (Criminal) 283 wherein it has been held that party should not suffer because of negligence on the part of his counsel. Crl. Appeal No. 491-MA of 2009 2 Learned counsel for the respondent has also relied on judgment of Apex Court in the case of the Associated Cement Co. Ltd. vs. Keshvanand, 1998(2) P.L.R. 812 and of Rajasthan High Court in Mittal Book and Stationers vs. Mahendra Singh Solanki, 2002(2) RCR (Criminal) 16 wherein it has been held that the Magistrate had discretion to dismiss or not to dismiss the complaint under Section 256 Cr.P.C. if presence of the complainant on that day was unnecessary. Keeping in view the fact that absence of the appellant on that date is bonafide, the appeal is allowed. Order dated 4.7.2009 is quashed and complaint is ordered to be restored to its original number subject to payment of Rs. 5000/- as costs. (DAYA CHAUDHARY) 29.03.2010 JUDGE reena