JUDGMENT :

VIVEK SINGH THAKUR, J.

1. Present appeal has been preferred against the impugned order dated 23.02.2019, passed by learned Judicial Magistrate, Court No.3, Shimla in Case RBT No. 560-3 of 18/16, titled as H.P. State Co-operative Bank Ltd. vs. Sh. Hira Lal, whereby complaint under Section 138 of Negotiable Instrument Act (hereinafter referred to as “N.I. Act”), filed by the appellant/complainant against Respondent Hira Lal has been dismissed in default for want of presence of complainant.

2. Impugned order is re-produced herein as under:-

“23.2.2019

Present:- None for the complainant.

Accused in person with Sh. Hitesh Kumar, Advocate.

On the previous date of hearing counsel for the complainant appeared but today none appeared. It is 11.30 AM. Be awaited, called after some respite.

-sd-

(Vishal Kaundal)

Judicial Magistrate Ist Class,

Court No.3, Shimla, H.P.

Taken up after respite

23.2.2019

Present:- As above.

Case called again but none has appeared on behalf of complainant. It is 12.30 P.M. Be called after lunch

-sd-

(Vishal Kaundal)

Judicial Magistrate Ist Class,

No.3, Shimla, H.P.

Taken up after respite

23.2.2019

Present:- As above.

It is 4.30 PM. The cause list for the day stand exhausted. Neither the complainant nor any counsel appeared on his behalf. As such, the present complaint is dismissed in default for want of complainant. File after its due completion be consigned to the record room.

-sd-

(Vishal Kaundal)

Judicial Magistrate Ist Class,

No.3, Shimla, H.P.”

3. It is submitted by learned counsel for the appellant that after recording the preliminary evidence of the complainant, learned Judicial Magistrate, Court No.7, had taken cognizance against the respondent vide order dated 29.06.2016 and thereafter, case was fixed for 29.07.2016 for service of the respondent-accused and later on, the case was transferred from Court No.7 to Court No.3 on 22.05.2018. In Court No.3, case was listed for service on 23.02.2019, but according to the learned counsel for the appellant, the said date was not in the knowledge of the appellant and, therefore, no one had put in appearance on behalf of the appellant before the Magistrate in Court No.3, as neither the complainant-Bank nor the Advocate had received any notice regarding listing of the case on that day in Court No.3 after transfer of the case and for that reason, competent Officer of the appellant/complainant-Bank had not asked the Advocate to appear on behalf of the appellant/complainant-Bank on that date before Court No.3 and ultimately, vide order dated 23.02.2019, as reproduced hereinabove, complaint of the appellant/complainant-Bank was dismissed.

4. The impact of dismissal of complaint in default and options available with Magistrate under provisions of Section 143 of the N.I. Act read with Section 256 of Code of Criminal Procedure, have been discussed in detail in judgment of this Court, being relied upon by the learned counsel for the appellant, passed in Bal Krishan Rawat vs. Pyare Lal Nepta, reported in 2018 (Supp)Shim. LC 95.

5. I am of the considered view that the ratio of the law, discussed in Bal Krishan Rawat’s case supra, is also applicable in the present case. In the present case also, in view the impact of dismissal in default, the Magistrate was supposed to exercise his discretion with care and caution clearly mentioning in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other date. As a matter of fact, transfer of the case to another court was not notified to the complainant as well as his counsel and, therefore, learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date.

6. In the impugned order, there is no finding of the Magistrate that complainant was not pursuing the complaint honestly and diligently and there is no reference to previous history, if any, with regard to conduct on the part of complainant causing u