The court can use inherent jurisdiction under Section 482 of Cr.P.C. to set aside dismissal orders and restore complaints. The discretion under Section 256 of Cr.P.C. must be exercised judiciously.

1. Heard Mr. S. C. Biswas, learned counsel for the petitioner and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent No. 1.

2. By this petition under Sections 397/401 read with Section 482 Cr.P.C., the petitioner has prayed for setting aside and quashing/ modification of the impugned order, dated 17.03.2018, passed by the learned Addl. Chief Judicial Magistrate, Sonitpur at Tezpur in C. R. Case No. 268/2011, wherein, the said learned trial Court recorded that the complainant/petitioner, herein, was not willing to proceed with the case and thereby dismissed the case for non-prosecution.

3. The complainant/petitioner’s case, in a nut-shell, is that he preferred the aforesaid complaint case against the respondent No. 2, herein, alleging, that the latter purchased MS TMT bars, on credit from the petitioner herein and an outstanding balance of Rs.3,49,667/- only remained outstanding to be paid by the respondent No. 2. On 20.05.2011, the respondent No. 2 went to the shop of the complainant/ petitioner, situated at Rangapara town and asked for verification and settlement of his account. Accordingly, the accused-respondent No. 2 herein verified the account and it transpired that the accused-respondent No. 2 had an outstanding balance of Rs.3,49,667/- only. Thereafter, the accused-respondent No. 2 with a view to discharge his liability issued a post dated cheque in favour of the establishment of the complainant/petitioner, that is, M/S Bhagawati Hardware, vide cheque No. 163810, dated 21.06.2011, of State Bank of India, Rangapara Branch (Account No. 3077828419). The complainant/petitioner contended that on the due date, he presented the said cheque on 21.06.2011 for collection of the cheque amount, but it was dishonoured and returned unpaid by State Bank of India, Rangapara Branch on the same day, that is, 21.06.2011, with a return memo showing ‘insufficient fund’. The complainant/petitioner, therefore, contacted the accused-respondent No. 2 over phone and informed him that the cheque was bounced due to insufficient fund and requested him to make payment at the earliest. However, the accused-respondent No. 2 did not respond, for which the complainant/petitioner issued a statutory notice to the accused-respondent No. 2, on 07.07.2011, by registered post through his engaged Advocate demanding the payment of the aforesaid cheque amount but the said notice was returned back to the learned engaged Advocate of the complainant-petitioner on 16.07.2011 with a note that ‘Addressee absent, so return to sender’ showing in the envelope of the notice that the accused was found absent on 08.07.2011, 09.07.2011, 11.07.2011, 12.07.2011 & 13.07.2011 respectively.

4. The complainant-petitioner further contended that being aggrieved, a complaint was filed before the Court of the learned Chief Judicial Magistrate, Sonitpur at Tezpur, vide Complaint Case No. 268/2011 which was made over to the Court of learned Addl. Chief Judicial Magistrate, Sonitpur, Tezpur for disposal. However, the learned engaged counsel of the complainant-petitioner herein did not conduct the case properly as he did not take steps as directed by the learned trial Court and as a result of which, the case was dismissed for non-prosecution vide the impugned order, dated 17.03.2018. According to the complainant-petitioner, his maternal uncle expired on 05.02.2018, for which he had to leave for his native place in Bihar and stayed there for 2 months. After returning back to Rangapara on 24.03.2018, he came to know that the case was dismissed by the learned Court below due to non-prosecution as his engaged counsel did not take any steps for issuance of Non-Bailable Warrant of Arrest (‘NBWA’, for short) against the accused-respondent No. 2. Accordingly, he applied for a certified copy of the impugned order on 28.03.2018 and got the copy of the said order on 02.04.2018.

5. It is also the contention of the complainant-petitioner herein that he should n