IMPORTANT POINT
Dismissal in default-It has to be concluded whether the presence of the complainant was necessary or not; before taking such a extreme step.

1. This is a petition under Section 482 of the Cr. P. C. praying for quashing of the order dated 26-5-2003 (Annexure P-6) and order dated 19-5-2005 (Annexure P-8), passed by the learned trial Court (sub Divisional Judicial Magistrate, Balachaur).

2. The facts of the case are that the petitioner had paid an amount of Rs. 5 lacs to respondent No.1 on the strength of the representation made by the said respondent that he would send the petitioner abroad. The respondent No.1 failed to fulfill his obligation and when the petitioner demanded his amount back, he issued a cheque of Rs. 5 lacs bearing No. 445358 dated 31-7-1999 drawn on Oriental Bank of Commerce, Manimajra. On presentation, the said cheque was dishonoured and returned with a remark "Insufficient Funds". The petitioner served a legal notice and thereafter filed a complaint in the year 2000 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). The respondent was thereafter ordered to be summoned for 9-2-2001 vide orders dated 16-12-2000 after preliminary evidence was recorded.

3. The respondent continued to evade the process of service and repeated process was issued by the Court for effecting the service upon him. Even bailable warrants were issued but the presence of the respondent could not be secured. The petitioner thereafter made an attempt to serve the respondent through publication which was allowed and the notice was published in the Dainik Tribune. Bailable warrants were again issued.

4. The trial Court then came to the conclusion that it was not possible to secure the presence of respondent through ordinary process and ordered the proclamation under Section 82 of the Cr. P. C. by passing an order to that effect on 26-7-2002. Subsequently, the matter was adjourned a number of times. Pursuant to the aforesaid proceedings under Section 82 of the Cr. P. C., the relevant orders are as below :-

"Present : Complainant with counsel.

Proclamation u/S. 82 Cr. P. C. received back unexecuted. As per earlier order, proclamation be again issued for 25-9-2002.

Sd/- SDJM/21-8-2002

Present : Complainant with counsel.

Proclamation received back unexecuted. Ahlmad is directed to issue reminder for 12-10-2002. Sd/- SDJM/25-9-2002

Present : Sh. Lalit Chowdhary, Cl. for the complainant.

Statement of Sh. Harkewal Ram, HC No. 202, P. S. Balachaur, has been recorded with regard to execution of proclamation u/O 82 Cr. P. C. As per the report of the head constable proclamation was effected on 11-10-2002 vide his report Ex. P1. Notice to SHO P. S. Balachaur, be issued with direction to produce the Roznamcha before the Court on 24-10-2002.

Sd/- SDJM/12-10-2002

Present : Sh. Lalit Chowdhary, Cl. for the complainant.

Head Constable Gurchain Singh is present and he has produced the Roznamcha of 11-10-2002. He has been directed to further direct HC-Harkewal on 25-10-2002 for proceeding further.

Sd/- SDJM/24-10-2002

Present : Sh. Lalit Chowdhary, Cl. for the complainant.

HC Harkewal Singh is present and I have gone through the Roznamcha dt. 11-10-2002. HC Harkewal Singh has not made any entries in the Rupat Roznamcha. I warn HC Harkewal Singh to be careful in future and I order to issue fresh proclamation u/S. 82 Cr. P. C. for procuring the presence of accused Pankaj Joshi. Proclamation be issued for 2-12-2002.

Sd/- SDJM/25-10-2002.

Present : Sh. Lalit Chowdhary, Cl. for the complainant.

File put up before me as Ld. Presiding Officer is on leave. Proclamation affected. To come upon 20-12-2002 for statement of executing official.

Sd/- SDJM/2-12-2002

Present : Sh. Lalit Chowdhary, Adv. for the complainant.

Case adjourned to 14-2-2003 for recording the statement of executing official. Executing Official be summoned for 14-2-2003.

Sd/- SDJM/16-11-2002

Present : Complainant with counsel.

HC Harkewal Singh be summoned for 16-1-2003 for recording his statement.

Sd/- SDJM/20-12-2002

Present : Sh. Lalit Chowdhary, Cl. for the complainant.

Notice sent in