1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 371 of 2005 Prem Arora ………..Applicant Versus State of Uttaranchal and another ….Respondents. Present: Mr.Pawan Misra, Advocate holding brief of Mr. Vinod Sharma, Advocate for the applicant. Mr. Nanda Arya, AGA for the State of Uttarakhand/respondent no.1. Mr. Rajendra Kotiyal, Advocate for respondent no.2. Date of Decision: 01.09.2010 Hon’ble Sudhanshu Dhulia, J This C-482 application was dismissed for non-prosecution by this Court on 12.07.2010. Consequently, the applicant has filed a restoration application along with delay condonation application for condoning the delay in filing the restoration application. The grounds shown for condoning the delay in filing the restoration application appear to be bona fide. Delay condonation application is allowed. Delay in filing the restoration application is condoned. Heard learned counsels for the parties on restoration application. The reasons shown for restoration of the matter seem to be bona fide. The restoration application is allowed. Order dated 12.07.2010 is recalled. Present C 482 application is restored to its original number. In view of the law laid down in Madhumilan Syntex Ltd. and others Vs. Union of India and another reported in 2007 AIR SCW 1971 the matter is liable to be heard and disposed of at this stage itself, as this Court has restored the matter. Heard Mr. Pawan Misra, advocate holding brief of Mr. Vinod Sharma, advocate for the applicant, Mr. Nandan Arya, AGA for the State of Uttarakhand and Mr. Rajendra Kotiyal, advocate for the complainant/respondent no.2. This Criminal Misc. Application under Section 482 of Cr.P.C. has been filed by the applicant challenging the proceedings in Criminal Case No. 382/2003 Gulshan Kumar Dora Vs. Prem Arora pending before 1st Judicial Magistrate, Dehradun under Section 138 of Negotiable 2 Instruments Act, 1881 (from hereinafter referred to as the ‘Act’) against the applicant. On the complaint made by the respondent no.2 summons were issued to the applicant. The primary contention of the applicant before this Court is that the cheque which is the subject matter of the dispute which is alleged to have been dishonored has not been produced before the court below. Therefore, without there being a cheque which is alleged to have been dishonored the Court could not summon the applicant and hence the summoning order is definitely without application of mind. Learned counsel for the respondents states that the cheque bearing no. QLA 584655 dated 30.04.1997 was filed by the complainant before the court below but subsequently it was found missing from the registry along with other documents. For this an application was moved by the complainant before the court below on which an enquiry was setup. Apart from this since the primary document was missing, the applicant had also produced as a witness the Branch Manager of the Bank who has deposed in the Court that such a cheque was presented in the Bank and because of insufficiency of funds it was dishonored. Therefore, the considered view of this Court is that now it becomes the bounded duty of the trial court to make all efforts to find out as to who is responsible for removing the necessary material evidence, which is the cheque as well as other documents from registry of the Court. A time bound enquiry must be initiated in this case as to find out why the cheque is missing and in case the responsibility is fixed upon any person proceeding be initiated against him under Section 204 of Cr.P.C. and other relevant provision of law. Moreover, apart from this as far as present merits of this case is concerned the matter can be proceed before the trial court in case the complainant is able to prove his case on the basis of any “secondary evidence”,. In short the trial court must proceed against the present applicant in accordance with law. Therefore there is no useful purpose for this Court if the present C 482 application remains pending. 3 The present C 482 application is absolutely devoid of merit and is liable to be dismissed and is hereby dismissed. The interim order, if any, is also vacated. No order as to costs. Copy of this order be sent to the court concerned for necessary compliance. (Sudhanshu Dhulia, J) 01.09.2010 Kuldeep