Restoration of complaint under Section 138 of the Negotiable Instruments Act with imposition of cost for restoration.

1. - Heard learned Counsel for the parties.

2. The instant misc. petition has been preferred by the petitioner/ complainant challenging the order dated 17.6.2010 passed by the Special Judicial Magistrate (N.I. Act Cases) Sri Ganganagar rejecting the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, in default and the order dated 29.8.2012 passed by the Sessions Judge, Sri Ganganagar rejecting the revision filed by the petitioner against the said order.

3. The contention of the learned Counsel for the petitioner is that the petitioner was not at fault in the matter because on the date fixed for hearing before the Trial Court i.e. on 7.12.2009, the matter was transferred to another Court and as the petitioner was not aware about the transferee Court, he could not appear before the Court for giving evidence. He submits that prior to-that, in the petitioner was not responsible for the delay in the matter because the matter was mostly adjourned as the Lawyers were not, attending the Court as & they were observing strike. He thus submits that the order dated 17.6.2010 rejecting the complaint filed by the petitioner and the order dated 29.8.2012 rejecting the revision be quashed.

4. Learned Counsel for the accused-respondent No. 2 opposes the submissions made on behalf of the petitioner.

5. Heard and considered the arguments advanced at the bar and perused the impugned orders.

6. The plea advanced by the learned Counsel for the petitioner that the petitioner was not aware of the date of hearing in the Court of learned Special Judicial Magistrate, N.I. Act cases, is prima facie untenable for the reason that in the petition itself, it has not been averred that the petitioner was not aware of the case being transferred to another Court. However, looking to the peculiar facts and circumstances of the case and considering the fact that the complainant has been deprived of proving his case at the inception itself because of the rejection of the complaint, one more opportunity deserves to be given to the complainant to prosecute his case before the learned Trial Court.

7. In the opinion of this Court, the petitioner should not be penalised so heavily. However, for the purpose of restoration of the' complaint, reasonable costs deserves to be imposed on the petitioner in this case.

8. Resultantly, the present misc. petition succeeds and upon the petitioner depositing a cost of Rs. 1,000/- in the learned Trial Court, the complaint is directed to be restored to its original number. Accordingly, the orders dated 17.6.2010 and 29.8.2012 passed by the Special Judicial Magistrate (N.I. Act Cases), Sri Ganganagar and the Sessions Judge, Sri Ganganagar respectively are quashed. 'Both the parties shall appear before the concerned Court on or before 24.2.2.014 whereafter, the Court below shall fix the next date and shall proceed expeditiously in the matter.The amount so deposited by the petitioner shall be appropriated towards the fund of the Legal Services Authority.Petition allowed.

*******