Crl. Misc. No.M-26818 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-26818 of 2010 Date of Decision: September 13, 2010 Bijender Kumar …..Petitioner Vs. Sanjay Kumar …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Navneet Singh, Advocate for the petitioner. -.- M.M.S. BEDI, J. (ORAL) The complaint of the petitioner under Section 138 of the Negotiable Instruments Act has been dismissed in default on November 23, 2009 when it was fixed for consideration on the point of summoning the accused and complainant opted not to appear. Though it is apparent from the order passed by the Judicial Magistrate Ist Class, Gurgaon dated July 19, 2010 that though the summoning of the accused had not been ordered yet notice of the application for restoration was given to the accused and the Crl. Misc. No.M-26818 of 2010 [2] application for restoration was dismissed being not maintainable with an observation that the remedy available to the complainant was to file appeal or revision against the order as the trail Court did not have any jurisdiction to review the order. I have heard counsel for the petitioner and I am of the opinion that the legality and the propriety of the order dismissing the complaint in default at a stage when it was fixed for consideration of the summoning of the respondent is not proper, the trial Court should have given a fair opportunity to enable the complainant to put in appearance on account of his illness. The rights of the accused- respondent to contest the application for restoration would come into operation only after summoning orders have been issued. In view of such proposition, in the interest of justice, this petition is being disposed of without issuing notice to the accused/ respondent. No doubt, the Judicial Magistrate Ist Class, Gurgaon did not have any jurisdiction to restore the complaint but the trial Court could have dismissed the application for restoration without issuing notice to the respondent- accused. This petition is disposed of without expression of any opinion regarding the maintainability of this petition under Section 482 Cr.P.C. It is felt that the petitioner should have filed a revision petition as Sessions Court has jurisdiction to determine the legality and propriety of the order dismissing the complaint in default. The Court dismissing the application for restoration has made an observation that the complaint had been pending Crl. Misc. No.M-26818 of 2010 [3] since December 7, 2009 and that the main counsel for the complainant had not been coming to the Court on each and every date rather proxy counsel tenders his appearance and seek adjournments and the petition could not be kept on lingering. In case the trial Court was not happy with the conduct of the counsel and unreasonable adjournments were being sought, he could have opted the provisions of Section 309 Cr.P.C. requiring the counsel for the complainant/ complainant to appear. It is not out of place to observe here that the counsel for the petitioner has brought to my notice that the counsel engaged for the complainant had not been able to appear before the Court for genuine reason i.e. on account of death of his grand-mother on March 31, 2010 and thereafter his father on April 30, 2010. The order dated July 19, 2010 passed by the Judicial Magistrate Ist Class, Gurgaon is hereby set aside in the interest of justice in order to give a fair opportunity to the complainant to put-forth his case. The order dated July 19, 2010 and order dated November 23, 2009 (dismissing the complaint in default) are set aside with a direction to the trial Court to consider the complaint afresh in accordance with law on October 9, 2010. The petitioner / complainant will put in appearance on October 9, 2010. It will be open to the Court to take the proceedings in accordance with law. It is made clear that the complainant or his counsel will not adopt evasive approach. The petitioner will be required to deposit a sum of Rs.2000/- before the trial Court for the inconvenience which had been caused to the respondent in contesting the application of restoration Crl. Misc. No.M-26818 of 2010 [4] before the trial Court. In case the trial Court opts to issue summoning order, the respondent will be entitled to withdraw the said amount from the Court. September 13, 2010 (M.M.S.BEDI) sanjay JUDGE