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TMI Blog2019 (3) TMI 1959X X X X Extracts X X X X X X X X Extracts X X X X ..... t under section 138 of the Negotiable Instruments Act, in default of nonappearance was set-aside and the complaint was restored. 2. Brief facts of the case are that the respondent/complainant has filed the aforesaid complaint under section 138 of the Negotiable Instruments Act, on account of dishonour of two cheques for an amount of Rs. 1,85544/- and Rs. 1,93,526/-, respectively on account of purchase of some material. The cheques were dishonoured by the bank with the remarks 'Insufficient Funds' on 29.01.2014. During the pendency of the complaint, on 01.06.2015, the case was fixed before the trial Court for depositing the publication charges for effective service of the petitioner - Ramanjeet Singh, however, on account of nonappea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t while passing an order adverse to the petitioner was bound to issue notice to the petitioner as per the provisions of Section 397 Cr.P.C., 1973 and without affording an opportunity of hearing to the petitioner, the impugned order passed by the trial Court was wrongly set-aside. 5. In reply, counsel for the respondent has argued that at the stage, when the complaint was dismissed for non-appearance, the petitioner was not served, therefore, the Revisional Court was not required to issue notice to the petitioner. It is further submitted that the Revisional Court has rightly held on merits that the trial Court without affording proper opportunity to the petitioner to deposit the publication charges, in a haste, has dismissed the complaint f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 nonappearance of the Complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same." 7. Counsel for the respondent has further argued that the petitioner has sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint on a hyper technical ground viz. since the complainant had been appearing in person, despite order dated 16th April 1999, exempting him from personal appearance, the said exemption order became redundant and the complainant should have sought a fresh exemption from personal appearance. We feel that such a view defies any logic. An order of exemption from personal appearance continues to be in force till it is revoked or recalled. 12. We are convinced that in the instant case, rejection of appellant's petition under Section 482 of the Code has resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code. As aforesaid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 378(4) Cr.P.C., 1973 thus, the impugned order dated 13.08.2015 passed by the Additional Sessions Judge, Ludhiana is liable to be set-aside on the ground of non-maintainability of the revision petition. 11. However, the finding recorded by the Revisional Court that the respondent has shown a bona fide cause for non-appearance is upheld. Therefore, considering the fact that the petitioner has shown a bona fide ground that he could not deposit the publication charges in time, the order of trial Court dismissing the case for non-prosecution, seems to be a very harsh decision. It is not disputed that the petitioner was not served at that stage and the complainant was required to deposit the publication charges for effecting service upon the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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