IMPORTANT POINT
Complaint cannot be dismissed for default.

K. Hema, J.—This revision petition arises from an order of dismissal of the complaint “for default”.

2. Revision petitioner is a company. A complaint was filed by revision petitioner against first respondent before Magistrate Court alleging offence under Section 138 of Negotiable Instruments Act, as early as on 14.12.2005. Accused did not appear on summons and hence non-bailable warrant was issued. Thereafter case was posted for evidence.

3. Proof affidavit was filed by complainant on 23.10.2007; but accused made a request for settling the case and the case was referred to Adalat. In the Lok Adalat case was not settled. Case was again posted for evidence to 16.4.2008. On 7.5.2008, complainant was absent and hence, accused was acquitted under section 256(1) of the Code of Criminal Procedure.

4. An appeal was filed revision petitioner as Criminal appeal No.2324 of 2008 and it was allowed. Case was remanded for fresh consideration and disposal “in accordance with law”. There was a direction by this court to appellant to report before the court on 4.10.2010. After about 4 months, on 2.2.2011, the trial court dismissed the complaint “for default”; since complainant and his counsel were absent.

5. Learned counsel for petitioner submitted that unfortunately he obtained the order of this Court only on 18.10.2010 and hence, he could not appear on 4.10.2010. But, the order was produced before the trial court on 26.10.2010 and on production of the same, court was pleased to post the case on 2.12.2010. The case was again posted to 24.1.2011 on which day complainant was represented and case was adjourned to 2.2.2011. On that day, since complainant and counsel were absent, trial court dismissed the complaint for default. It is submitted by learned counsel for petitioner that he had entrusted the case with another counsel, but he omitted to make representation.

6. It was also pointed out that first respondent did not appear in Criminal Appeal No.2324/08 before this Court (appeal from acquittal) despite notice and he also did not appear before the trial court, either on 4.10.2010 or on subsequent days to which case was posted and also on the day on which case ended in dismissal.

7. On hearing petitioner’s counsel and on going through the impugned order, I am satisfied that order under challenge is illegal, considering the various facts stated above. Since proof affidavit is already filed, the court ought to have proceeded with the case, after procuring presence of accused. At any rate, there is no provision in the Code which enables a trial court from dismissing the complaint “for default”. Hence order under challenge is unsustainable. In the peculiar facts and circumstances of the case, I find that notice need not be issued to first respondent in this revision, especially since he had failed to appear in the appeal against order of acquittal and also before the trial court, after the remand order. Issuance of notice to him will therefore result only in miscarriage of justice. Hence notice to first respondent is dispensed with.

In the result, the following order is passed:

1. The order under challenge is set aside.

2. Case is remanded to the trial court for disposal, in accordance with law, after issuing notice to counsel appearing for both sides.

This petition is allowed.

Petition allowed.

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