A party should not suffer due to the non-appearance of their counsel, especially when the trial has not commenced.

JUDGMENT :

W. Diengdoh, J.

1. Heard Mr. K.C. Gautam, learned counsel for the petitioner who has submitted that the petitioner is a company incorporated under the Companies Act, 1956 and is represented by its Director, Shri. Gilbert Diengdoh.

2. The learned counsel has further submitted that this application preferred under Section 482 Cr.P.C is made with a prayer to set aside and quash the order dated 15.06.2022 passed by the court of the learned Judicial Magistrate First Class, Shri. D.K. Mihsill in CR Case No. 87(S) of 2012.

3. It is also submitted that upon institution of this petition before this Court, the petitioner was directed to take steps for issue of notice upon the respondents which was accordingly done so. However, in spite of the same having been received, the respondents have failed to appear before this Court. Accordingly, it is prayed that this matter may proceed ex parte against the respondents herein.

4. Briefly citing the background facts leading to the filing of this petition, the learned counsel has submitted that the petitioner/company has business dealings with the respondents herein for which in the month of March, 2008 four consignments of ferro-silicon valued at Rs.46,79,890/-(Rupees forty six lakh seventy nine thousand eight hundred ninety) only was supplied to the respondents who has paid an amount of Rs.10,00,000/-(Rupees ten lakh) only with the balance of Rs.36,79,890/- (Rupees thirty six lakh seventy nine thousand eighty hundred ninety) only yet to be paid.

5. On the respondents failing to make payment, the petitioner had lodged an FIR on 12.10.2011 registered as Umiam P.S. Case No. 43(10) of 2011 under Section 120(B)/418/420 IPC. The respondents responding to the same had worked out the amount to be paid to the petitioner which apart from the principle amount the accrued interest thereon comes to Rs.34,54,599/- (Rupees thirty four lakh fifty four thousand five hundred ninety nine) only and therefore, together with the principal the total amount comes to Rs.71,34,489/- (Rupees seventy one lakh thirty four thousand four hundred and eighty nine) only. The respondents have then made a part payment of Rs.40,00,000/- (Rupees forty lakh) only on 03.11.2011.

6. For the remaining balance of Rs.31,34,489/- (Rupees thirty one lakh thirty four thousand four hundred eighty nine) only the respondents had issued an account payee cheque for the said amount from Account No. 25220500000011 drawn on the Bank of Baroda in favour of the petitioner. The cheque was signed by the respondent No. 2, Shri. Sanjay Kabra.

7. On receipt of the said cheque, the same was deposited by the petitioner on the company’s account with the State Bank of India, Shillong Branch, however, the said cheque returned unpaid by the Bank of Baroda on the ground “Payment Stopped by the Drawer”.

8. On the respondents after being made known of the fact that the said cheque has bounced, the respondents failing to respond to the same, the petitioner then instituted a Complaint Petition under Section 138 of the Negotiable Instruments Act, 1881 before the learned court of Judicial Magistrate First Class, Shillong which was registered as CR Case No. 87(S) of 2012.

9. During the pendency of said CR Case No. 87(S) of 2012, the respondents preferred two petitions before the Hon’ble Gauhati High Court (Shillong Bench) [as this Court then was], one being registered as Crl. Petn. (SH) No. 68 of 2011 which is a petition for quashing of the FIR dated 12.10.2011 registered as Umiam P.S. Case No. 43(10) of 2011. Another case being Crl. Petn. (SH) No. 40 of 2012 with a prayer for quashing of the proceedings in CR Case No. 87(S) of 2012.

10. This Court vide order dated 21.05.2013 had disposed of Crl. Petn. (SH) No. 68 of 2011 allowing the prayer