JUDGMENT :

Rajnesh Oswal, J.-

CRMC No.60/2014

1. The present petition has been filed by the petitioner for quashing the order dated 18.11.2013 passed by the court of learned Sessions Judge, Jammu, whereby the acquittal appeal filed by the petitioner was dismissed and also for quashing order dated 20.08.2013 passed by the court of learned Special Mobile Magistrate (Passenger Tax and Shops Act) Jammu (hereinafter to be referred as the trial court), whereby the complaint under section 138 Negotiable Instruments Act (for short the Act) filed by the petitioner was dismissed for want of prosecution evidence.

2. It is stated that the petitioner had filed a complaint under section 138 of the Act against the respondent and the respondent sought number of opportunities to settle the dispute and had sought time to pay back the amount due to the petitioner. As the compromise was going on between the parties and the respondent had paid a sum of Rs. 10,000/- in the court, so the petitioner did not feel any need to produce any witness in support of the complaint. On 17.08.2013, when the matter was again taken up the learned trial court for the first time gave last and final opportunity to the petitioner to produce the witness and the matter was kept on 20.08.2013. On 20.08.2013, the petitioner along with his counsel appeared and requested the learned trial court to record the statement of the complainant/petitioner, but since the accused respondent herein was not present, therefore, the matter was passed over and the same was directed to be taken up for recording the statement of the petitioner after completion of all the criminal matters. Learned counsel for the petitioner along with the petitioner went to the court to get the statement of the petitioner recorded but instead the counsel for the petitioner was told that the complaint of the petitioner was dismissed in default as also for want of prosecution evidence.

3. Feeling aggrieved of order dated 20.08.2013, the petitioner filed an acquittal appeal before the Sessions Court Jammu, however, the learned Sessions Judge, Jammu vide order dated 18.11.2013 dismissed the appeal filed by the petitioner.

4. The petitioner being aggrieved of the orders passed by the learned trial court as well as learned Sessions Court, has filed the present petition for quashing both the orders on the ground that the reason for not producing the witness was that the compromise/negotiation was going on between the parties that is substantiated by the various court orders wherein the respondent himself stated that the matter was being settled between the parties and the respondent required some time to repay/reimburse the amount to the petitioner. Further the respondent has admitted his liability by paying an amount Rs. 10,000/- to the petitioner and had further sought time to repay back the amount to the petitioner. Therefore, the petitioner did not produce any witness in support of his complaint.

5. Mr. Ankesh Chandel, learned counsel for the petitioner has vehemently argued that the learned trial court has fallen in grave error of law while dismissing the complaint for non prosecution, particularly when the respondent had sought time to settle the matter and had even paid a sum of Rs. 10,000/- to the petitioner. He further submitted that the acquittal appeal filed by the petitioner was in fact wrongly filed as the same was required to be filed before this Court and further argued that the present petition is required to be treated as an appeal ignoring the judgment of Sessions Court. He placed reliance upon the judgment of the Full Bench of the Madras High Court in case, titled, K. Rajalingam vs. R Suganthalakshmi and others decided on 28.05.2020.

6. Per contra, Mr. Rajesh Kumar, learned counsel for the respondent did not raise any objection to the contention of the learned counsel for the petitioner that the present petition is required to be treated as an appeal, but he vehemently argued that the complainant