A litigant ought not to suffer because of the mistake of the Counsel, and a reasonable explanation for absence can warrant an opportunity for consideration of the complaint on merits.

JUDGMENT

Manish Pitale, J. - By this appeal, the appellant (Original complainant) has challenged the order dated 21/01/2020 passed by the Court of Chief Judicial Magistrate, Margao, whereby a complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881, has been dismissed.

2. The learned Counsel appearing for the appellant invited attention of this Court to the impugned order, which records that neither the complainant i.e. the appellant before this Court, nor his Advocate was present when the complaint was called out for consideration. As a consequence, the complaint stood dismissed. It is submitted that the appellant has been deprived of consideration of his complaint on merits and that a perusal of the Roznama of the aforesaid Court would show that the appellant, as well as the Advocate, could not remain present for reasonable cause on the date the impugned order was passed. In this connection, the learned Counsel appearing for the appellant invited attention of this Court to an affidavit of the Advocate who was representing the appellant before the Court of Chief Judicial Magistrate. On the basis of the contents of the said affidavit and the Roznama, it was contended that at worst there was only a single default on the part of the appellant, for which the appellant ought not to be deprived of consideration of the complaint on merits. On this basis, it is submitted that the appeal deserves to be allowed.

3. Mr. Naik, learned Counsel appearing for the respondent (original accused) submitted that the impugned order did not deserve interference for the reason that even on the date prior to the date on which the impugned order was passed, none had appeared on behalf of the appellant and due to consistent default, the aforesaid impugned order came to be passed. It was submitted that the dismissal of the complaint has inured to the benefit of the respondent-original accused and therefore, this Court ought not to interfere with the impugned order.

4. Heard learned Counsel for the rival parties and perused the material on record.

5. A perusal of the Roznama placed on record shows that while on various dates the complainant and his Advocate were indeed present before the Court of the Chief Judicial Magistrate, Margao, none appeared on behalf of the appellant on 14/11/2019, as well as on 21/01/2020. By the order dated 14/11/2019, the case was adjourned to 21/01/2020. The stage was cross-examination of the appellant on behalf of the respondent. A bare perusal of the Roznama would show that other than the two dates of 14/11/2019 and 21/01/2020, the complainant and/or his Advocate did remain present before the Court of the Chief Judicial Magistrate.

6. In this context, a perusal of the affidavit filed by the Advocate representing the appellant before the said Court shows that detailed explanation was given as to what happened on 14/11/2019 when the matter was listed before the aforesaid Court. It was explained that although the Roznama records that none was present on behalf of the appellant, on the same date the Advocate had reached the Court at around 3:30pm and he found that in the first round itself the matter was adjourned and a date was given. The Advocate then collected the information regarding the next date of hearing and in these circumstances, the presence of the Advocate could not be marked in the Roznama of 14/11/2019. It is then stated by the Advocate that as per routine practice he used to note the adjourned date in his diary immediately, but since the next date was given for January,2020, and he was not carrying the diary for the year 2020, he could not note the adjourned date immediately in the diary of 2020. In these circumstances, the Advocate completely missed the next date of listing of the matter, which was 21/01/2020.

7. It is then stated that when the Advocate was preparing a list of matters and checked the Central Information System upon reopening of the Court on 08/06/2020, he realised fo