IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA ON THE 5^th OF JULY, 2023 MISC. CRIMINAL CASE NO. No. 50480 of 2022 BETWEEN:-

MAHENDRA S/O NARENDRA JOSHI AGED ABOUT 36 YEARS, OCCUPATION: SERVICE, R/O: SONKATCH, DISTRICT DEWAS (M.P.)

.....PETITIONER (BY MS. DEEPIKA RATHI - ADVOCATE)

AND ROOPSINGH S/O MANSINGH, R/O: VILLAGE AUAD, TEHSIL SONKATCH, DISTRICT DEWAS (M.P.)

.....RESPONDENT -----------------------------------------------------------------------------------------------------

This application coming on for admission this day, the court passed the following:

From perusal of the impugned order, it appears that notice was not issued to the respondent before the trial Court at the time of passing of the impugned order, therefore, no need to issue notice to the respondent.

ORDER

1/ This petition under Section 482 of Cr.P.C. has been filed by the petitioner for restoration of complaint No. UNCR/13/2022 filed under Section 138 of the Negotiable Instruments Act, 1881 before the JMFC, Sonkatch, District Dewas (M.P.).

2/ The brief facts of the case are that petitioner has filed an application under Section 138 of the Negotiable Instruments Act. Since the petitioner has not paid the court fees despite 13 adjournments, therefore, vide order dated 30.7.2022 the JMFC, Sonkatch, District Dewas in unregistered case No.13/2022 dismissed the complaint on account of non payment of the court fees and also in absence of the petitioner. Therefore, this petition has been filed before this Court. 3/ Learned counsel for the petitioner contended that the petitioner is working very hard for his livelihood and he will have to suffer a huge loss if he cannot recover such amount of Rs.2,60,000/- from the respondent. The impugned order passed by the trial Court is very harsh and the petitioner should not suffer due to the mistake done by his counsel. Hence, the order passed by the trial Court be set aside and the complaint bearing No. UNCR/13/2022 be restored to its original number filed under Section 138 of the Negotiable Instruments Act before the JMFC, Sonkatch, District Dewas.

4/ Learned counsel for the petitioner has placed reliance on the judgment of Punjab and Haryana High Court in Omprakash Vs. M/s Golden Forest India Ltd. and others, 2008(4) R.C.R. (Cr.) 445 in which it held as under:-

“4. This Court while considering an identical issue in Criminal Misc. No.36522-M of 2006 (Purushotam Mantri Vs. Vinod Tandon alias Hari Nath Tandon) vide judgment dated January 30, 2008 opined as under:-

“Learned counsel for the petitioner did not dispute that application filed by the petitioner before the Court below for recalling the order was not maintainable and accordingly the same was rightly dismissed by the Court below. However, submission is that this Court under Section 482 of the Code can certainly direct restoration of the complaint, which was dismissed in default if sufficient reason is found for his non appearance on the date fixed. For the purpose he has relied upon the observations made by this Court in Jitender Bajaj Vs. State (U.T. Chandigarh) and Ors. 2005 Crl. L.J. 3136, which are reproduced below:-

“....... When the Magistrate, in a summon case, has dismissed the complaint and acquitted the accused due to absence of the complaint on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complaint shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non appearance of the complainant before