I N THE HI GH COURT OF UTTARAKHAND AT NAI NI TAL Criminal Misc.Application No.1756 of 2018 Shri Narendra Singh Rathore ......Applicant Vs.

State of Uttarakhand and Anr. …..Respondent Presence Mr. B.M. Pingl, learned counsel for the applicant.

Mr. Amit Kapri, learned counsel for the private Respondent.

Mr. Girish Ch. Joshi learned AGA for the State.

Hon’ble Ashish Naithani, J.

1. The present application under Section 482 CrPC has been filed by the applicant, Narendra Singh Rathor, seeking to invoke the inherent jurisdiction of this Court to set aside the order dated 19.01.2018 passed by the learned 1st Additional Civil Judge (Junior Division)/Judicial Magistrate, Nainital in Criminal Complaint Case No. 1499 of 2016 titled "Narendra Singh Rathor vs. Nafeesh Ahamed", whereby the said complaint was dismissed for want of prosecution, as well as to set aside the judgment and order dated 31.08.2018 passed by the learned 2nd Additional District Judge, Nainital in Criminal Revision No. 27 of 2018 arising therefrom.

2. The proceedings originated from a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by the applicant against the private respondent, alleging dishonour of cheque(s). The complaint was registered on 28.06.2016 before the Court of the learned Chief Judicial Magistrate, Nainital.

3. Cognizance was taken by the learned Magistrate, and after recording preliminary statements under Section 200 CrPC, summons were issued to the accused. On non-appearance, bailable warrants were issued, and subsequently, non-bailable warrants were also issued due to continued absence.

4. The respondent eventually surrendered on 16.10.2017 and was granted bail. The matter was then fixed for recording of the respondent’s plea under Section 251 CrPC.

5. On several subsequent dates—namely 13.11.2017, 27.11.2017, 13.12.2017, 08.01.2018, 12.01.2018, and 19.01.2018—either the complainant or his counsel remained absent. On the last of these dates, i.e., 19.01.2018, the learned trial court, noting persistent absence, dismissed the complaint for want of prosecution.

6. Aggrieved by the said dismissal, the applicant preferred a criminal revision before the learned 2nd Additional District Judge, Nainital, which was dismissed on 31.08.2018, holding that such a revision was not maintainable in view of Section 401(4) CrPC. It was observed therein that the appropriate remedy lay in filing an appeal against the acquittal under Section 378(4) CrPC.

7. It is the case of the applicant that the absence on the said dates was neither deliberate nor wilful but occurred due to inadvertence and the court being vacant on several prior dates. The applicant contends that the complaint was otherwise being diligently pursued and requests restoration of the complaint in the interest of justice.

8. Learned counsel for the applicant submitted that the order dated

19.01.2018 passed by the learned trial court suffers from material irregularity and is liable to be set aside. It is urged that the complaint under Section 138 of the Negotiable Instruments Act was diligently prosecuted until unforeseen lapses caused by inadvertent non-

appearance on a few dates led to its dismissal for default.

9. It is contended that the absence of the applicant or his counsel on

08.01.2018, 12.01.2018, and 19.01.2018 was not intentional but occurred due to a bona fide slip of memory, particularly as the presiding officer was on leave on multiple prior dates, including 13.11.2017, 27.11.2017, and 13.12.2017. It is urged that the complainant was under the impression that the matter had not progressed due to repeated adjournments and court vacancy.

10. The applicant submits that the learned trial court failed to exercise judicial discretion appropriately and ought to have taken into consideration the circumstances surrounding the absence rather than proceeding to dismiss the complaint without affording a final opportunity, especially when the delay was neither gross nor contumacious.

11. Learned co