[2025:RJ-JP:13566]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 346/2025 Omprakash S/o Shri Nandlal Ji Luhar, Aged About 47 Years, R/o Keshonagar, Tehsil K. Patan, District Bundi (Raj.)

----Petitioner/Complainant Versus Hemraj S/o Shri Prithviraj Gurjar, Aged About 28 Years, R/o Kheda Mohalla, Ward No. 7, K. Patan, District Bundi (Raj.)

----Respondent/Accused For Petitioner(s) : Mr. Samarth Sharma, Advocate For Respondent(s) : Mr. M.S. Shekhawat, Public Prosecutor HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Order

25/03/2025 :

Instant petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been preferred on behalf of the petitioner/ complainant against the impugned order dt.02.08.2024 passed by the Court of ld. Additional Chief Judicial Magistrate, Keshavraipathan District Bundi, in Case No.69/2024, whereby the complaint filed by petitioner/ complainant under Section 138 of the N.I. Act was dismissed in default as well as for non-prosecution.

Submissions of learned counsel appearing for the petitioner/

complainant are that the petitioner had filed a complaint before ld. Trial Court on 12.06.2024. The said complaint was listed before ld. Trial Court for the first time on 02.08.2024 but due to the ill health of the grandson of the petitioner, he could not be appeared before ld. Trial Court & his Counsel also could not have been appeared due to unforeseen circumstances. Ld. Trial Court vide its order dt.02.08.2024 did not taken the cognizance, rather the complaint was dismissed in default as well as for non-prosecution. The petitioner filed an application before ld. Trial Court for restoration of complaint, which was also dismissed vide its order dt.19.12.2024. The complaint was at the preliminary stage and, therefore, the present petition may be allowed &

the complaint filed by the petitioner be restored to its original number.

In support of his submissions, learned counsel appearing for the petitioner/complainant, has placed reliance upon the following judgments i.e. (i) Purushotam Mantri Vs. Vinod Tandon @ Nath Tandon, (2008) 01 P&H CK 0053, (ii) Smt. R. Rajeshwari Vs. H.N. Jagadish & Another, 2001 (5) KARLJ 634 and (iii) Steel Strips Limited Vs. Jyoti Mechanical Movements & Another, (2000) 124 PLR 302.

Heard learned counsel appearing for the petitioner. Perused the material made available on record as well as the judgments cited herein-above.

In the case of Purushotam Mantri (supra), in Para 6, the High Court of Punjab & Haryana at Chandigrah, has held as under:-

“6. Learned counsel for the petitioner did not dispute that the application filed by the complainant before the ld. Trial Court for restoration the order was not maintainable and accordingly, the same was rightly dismissed by the ld. Trial Court. However, this Court under Section 482 of Cr.P.C./ under Section 528 of the B.N.S.S., 2023 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 observation made by this Court in Jitendra Bajaj Vs. State (U.T. Chandigarh) and Ors. 2005 Crl.L.J. 3136, which are reproduced below:(Emphasis supplied).

.....When the Magistrate, in a summon case, has dismissed the compliant and acquitted the accused due to absence of the complaint on the day of hearing, he cannot later-on restore the compliant and set aside the order of acquittal, even if the complaint shows very good reason for his failure to be present on the day of dismissal of the compliant. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or petition U/s.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 & circumstances, the dismissal of the compliant and acquittal of the accused was not justified or there w