JUDGMENT :

Heard Mr. B. Lalramenga, learned counsel for the petitioner alongwith Mr. K. Paul, learned senior counsel for the opposite party respondent.

2. This is a petition submitted under Section 482 of the Code of Criminal Procedure for setting aside the impugned Judgment& Order dated 26.08.2019 passed by the learned Chief Judicial Magistrate in connection with Complaint Case No. 105/2013.

3. Brief facts of the case leading to the instant Criminal Petition is that the petitioner had instituted a complainant case before the learned Chief Judicial Magistrate for bouncing of cheque under section 138 of the Negotiable Instruments Act. The petitioner’s case is that he had constructed a retaining wall at Zokhawsang Zemabawk, Assam Rifles, Aizawl for the respondent by spending a huge amount of money and the respondent gave him a cheque amounting to Rs. 27,23,739/-, but the same was bounced as the bank informed the petitioner that the account of the respondent was closed. The petitioner then served notice upon the respondent but since the respondent did not pay the amount, he had filed the complaint before the Chief Judicial Magistrate. That when the case came up for orders on 26.08.2019, the complainant/petitioner’s lawyer had gone to Lunglei for another case. Since he could not attend the case on 26.08.2019, the case was dismissed for non-prosecution. Aggrieved by the dismissal order dated 26.08.2019, hence the instant petition.

4. Mr. B. Lalramenga, learned counsel for the petitioner submits that from the perusal of the case records and order sheet, it can be seen that summons was issued to the opposite party several times and had even gone to the extent of issuing non bail-able warrant against the opposite party. However, the opposite party had failed to appear before this Court, in spite of all steps taken by the CJM Court.

5. The complainant on the other hand was present on all the Court dates, except on the court date preceding the date of the impugned order i.e. on 26.07.2019 and it can be seen from the order sheet that summons were not issued to the complainant and thus he was absent on the next date when the impugned Order dated 26.08.2019 was passed.

6. The learned counsel for the petitioner submits that on reading the impugned order dated 26.08.2019, the learned court while passing the impugned Order dated 26.08.2019 had simply dismissed the criminal complaint for non appearance and that there is no order for acquittal. For the above reason, he cannot approach this Court by way of review or by way of an appeal. He mentions that the Order dated 26.08.2019 is not a dismissal of the complaint under Section 203 or 204 Cr.P.C nor is it an acquittal order under Section 256 Cr.P.C and therefore, he cannot approach this Court either under Section 397 or 398 Cr.P.C, it is seen that he has no other option but to approach this Court under Section 482 Cr.P.C, which is mainly for the advancement of justice and securing the ends of justice. He submits that though it is known that if there is a specific provision, section 482 should not be invoked, however, in this present case, there is no other provision of law under which the petitioner can approach the court for setting aside the order of dismissal of the case. He submits that there is no specific prohibition under the Cr.P.C from him approaching this Court under Section 482 Cr.P.C. He thus prays that this is not an acquittal nor dismissal order, he has no other option but to approach this Court under Section 482 Cr.P.C.

7. In support of his submission, he has cited the decisions of the Apex Court in the case of Gorige Pentaiah vs. State of Andhra Pradesh and others reported in 2008 12 SCC 531, State of Punjab vs. Davinder Pal Singh Bhullar and others reported in 2011 14 SCC 770 and 1998 Criminal Law Journal 267.

8. Mr. K. Paul, learned senior counsel for the respondent on the other hand mentions that in the instant case, the learned Court had taken cognizance of the matter and thereafter