The vital rights of the appellant and principles of natural justice required the restoration of the complaint despite the lackadaisical conduct of the appellant.

Pratibha Rani, J.;—

1. The present Criminal Leave to Appeal is filed by appellant/complainant ICICI Bank impugning the order dated 2nd May, 2011 vide which the complaint filed by the Appellant Bank under Section 138 NI Act was dismissed under Section 256 (1) Cr.P.C and accused i.e. respondent No.2 was acquitted.

2. The case of the appellant is that the appellant/complainant was prosecuting the matter diligently and appearing on each date. On the date 02.05.2011 when the complaint was dismissed, the AR could not appear before the learned Trial Court due to wrong noting of the date of hearing of the said complaint by the counsel for the complainant.

3. The impugned order has been challenged on the ground that the learned M.M could have adjourned the matter to some other date instead of dismissing the complaint. In the circumstances, that the amount of Rs.11 lacs is involved and it would be a loss of public exchequer if the complaint is not restored, it has been prayed that the complaint be restored in the interest of justice and matter be allowed to be proceeded in accordance with law.

4. Notice of the petition was given to State as well as issued to the respondents No.2 and 3. Respondent No.3, Director of the respondent No.2-company failed to appear despite service of notice.

5. On 23th December, 2011, ld. Counsel for the appellant appeared and submitted that total amount of Rs.11,00,000/- is involved in this case and if this petition is not allowed, it will be a loss to the exchequer of the public and that on instructions from appellant bank, he is ready to pay the cost for non-appearance of the appellant and for wasting the public time. Thereafter the matter was re-notified for 3rd February, 2012 and then for 3rd May, 2012. On 3rd May, 2012 despite the matter being passed over number of times, learned counsel for the appellant did not appear till afternoon and the proxy counsel Mr.Karan Heera, Adv. though claimed that he was ready with the arguments, when asked to argue, was not able to make any submissions.

6. The case of the appellant bank as pleaded in the complaint under Sec. 138 Negotiable Instrument Act is that the accused named in the complaint had availed loan facility under the loan account No.603805017211 from the appellant bank and in order to discharge his part liability/debt accrued on account of dues, respondent No.2 issued and handed over a cheque bearing No.045796 dated 21.08.2009 for an amount of Rs.11,00,000/ drawn on Allahabad Bank in favour of the complainant/appellant bank. On presentation for encashment, the said cheque was returned unpaid by the drawer’s bank alongwith return memo dated 26.08.2009 for the reasons ‘Insufficient Funds’. Thereafter on 04.09.2009 a demand/legal notice was sent to accused/respondent No.2 by the appellant bank through its counsel thereby calling upon him to make payment of the dishonoured cheque within 15 days from the receipt of legal notice but despite that accused/respondents No.2 failed to make the payment. Hence, complaint under Sec.138 Negotiable Instrument Act was filed.

7. The submissions made by learned counsel for the petitioner that it was due to wrong noting of date that the AR or counsel could not appear on the date when the complaint was dismissed under Sec. 256(1) Cr.P.C, are contrary to the proceedings recorded on 2nd May, 2011. The order of learned Metropolitan Magistrate is extracted hereunder :-

“ICICI Bank Ltd. vs. Tarun Mehrotra’

CC No.25920/09

02.05.2011 (At 10:10 AM)

Present : None for complainant despite calls.

Accused in person with counsel Sh. Ajit Singh.

Be awaited.

sd/-

( VIPIN KHARB)

MM : DWARKA :

02.05.2011

At 11.15 AM

Present : None for complainant despite calls.

Accused in person with counsel Sh. Ajit Singh.

Be awaited.

sd/-

( VIPIN KHARB )

MM : DWARKA :

02.05.2011

At 12.55 PM

Present : None for complainant despite calls.

Accused in person with counsel Sh. Ajit Singh.

Perusal of the record reveals that on 07.05.2010 accused was present with his counsel and a cost