JUDGMENT

Mr. N.S. Shekhawat, J.

The present appeal is directed against the order dated 12.04.2005, passed by the learned Chief Judicial Magistrate, Jalandhar, whereby, the complaint filed by the present appellant/complainant was ordered to be dismissed in default.

2. Learned counsel for the appellant contended that the appellant/complainant had filed a complaint against the respondent/accused under section 138 of the Negotiable Instruments Act (for short 'the NIA Act') on 10.07.2004. It was stated in the complaint that in order to discharge his legal liability, the respondent had issued a cheque bearing No.004180 for a sum of Rs.91,750/- dated 03.04.2004 drawn on Andhra Bank, Jalandhar, in favour of the appellant/complainant and assured the appellant that the cheque would be honoured on presentation. However, as per the assurance of the respondent, when the cheque was presented for encashment, the same was returned and was dishonoured with the remarks 'Funds Insufficient'. Accordingly, a legal notice was issued to the respondent through registered as well as UPC Post. However, the respondent did not make the payment. Ultimately, the appellant was constrained to file a criminal complaint in the Court of learned Area Magistrate, Jalandhar on 10.07.2004. Learned counsel further contended that the appellant was present on each and every date of hearing with his counsel and never absented during the Court proceedings. However, on 12.04.2005, the case was listed for appearance of the accused. But due to mistake, the appellant had wrongly noted the date of hearing as 18.04.2005 instead of 12.04.2005. Due to this, when the case was taken up for hearing on 12.04.2005, the appellant could not appear before the learned Magistrate and his act of non-appearance was neither intentional nor will full. Learned counsel further contended that on the date fixed i.e. on 12.04.2005, no effective proceeding was to take place and the case was listed for appearance of the accused only. Learned counsel further submitted that it was a bona fide mistake on his part and the complaint was wrongly ordered to be dismissed in default by the learned Chief Judicial Magistrate, Jalandhar.

3. Learned counsel for the appellant has relied upon the law laid down in the matter of " Shakti Industrial Corporation v. Ridaus Auto Components Private Limited and other", 2015(8) RCR (Criminal) 457; " Santosh Devi v. Mahinder Singh ", 2015(2) RCR (Criminal) 192 and " The Associated Cement Co. Ltd. v. Keshvanand ", 1998 (1) RCR (Criminal) 309.

4. The submissions made by learned counsel for the appellant have been vehemently opposed by the learned counsel representing the respondent and contends that the accused had adopted dilatory tactics and the impugned order was correctly passed by the learned trial Court.

5. Learned counsel for the respondent has relied upon the law laid down by this Court in the matter of " State of Haryana v. Virender Singh @ Goly ", 2022 (3) RCR (Criminal) 860 and " Smt. Habiba v. State of U.P. and 2 others", 2022 (2) Crimes 265.

6. I have heard learned counsel for the parties and with their assistance, I have perused the trial Court record carefully.

7. The record clearly shows that the complaint was presented before the learned trial Court on 10.07.2004 and the appellant/complainant was present with his counsel. Even on subsequent dates i.e. 30.07.2004, 13.09.2004 and 06.01.2005, the appellant/complainant was present with his counsel before the learned trial Court. On 06.01.2005, the case was adjourned to 12.04.2005 for the service of the accused and on 12.04.2005, the