HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 175/2018 Narendra Sharma S/o Sh. Gopal Dutt Sharma, aged 49 years, R/o 54/28, New Colony, Gumanpura, Kota, Raj. ----Petitioner/complainant Versus 1. State of Rajasthan Through PP. 2. Sh. B.S. Anand (Bhupendra Singh) S/o Sh. Manjeet Singh, R/o Peeli Kothi, Opposite the Office of Dainik Navjoyoti Press, Chhavani Road, Kota, Raj. ----Respondents For Petitioner(s) : Mr. Neeraj K. Tiwari For Respondent(s) : Mr. Shree Ram Dhakar-PP Mr. Vivek Choudhary-PP JUSTICE ANOOP KUMAR DHAND Order 17/03/2026 1. By way of filing the instant petition, a challenge has been led to the impugned order dated 19.09.2002 passed by the Additional Chief Judicial Magistrate No.5, Kota by which the complaint submitted by the petitioner-complainant (hereinafter referred to as "the complainant") against the accused respondent No.2 (hereinafter referred to as "the accused") under Section 138 of the N.I Act, 1881 (for short, "the N.I. Act") has been dismissed for want of his presence. 2. Counsel for the complainant submits that a complaint under Section 138 of the N.I. Act was submitted by him against the accused before the Trial Court wherein cognizance was taken against the accused and he was summoned to appear before the (2 of 3) [CRLMP-175/2018] Trial Court. Counsel submits that at the stage of appearance of the accused before the Trial Court, the complainant failed to appear before the trial Court on account of wrong noting of the date in the case diary by the counsel for the complainant as 29.09.2002 instead of 19.09.2022 and the complaint was dismissed in default for want of the complainant's presence. Counsel submits that in- fact the correct date to appear before the Trial Court was 19.09.2002 which was wrongly noted as 29.09.2002, hence, because of the mistake of the counsel for the complainant, the complaint submitted by him has been dismissed in default by the Trial Court. Counsel submits that the complainant cannot be made to suffer on account of the mistakes, if any, committed by his lawyer. Hence, interference of this Court is warranted. 3. Heard and considered the submissions made at Bar and perused the material available on record. 4. Perusal of the record indicates that after taking cognizance against the accused respondent, the Trial Court summoned him and on the fateful day i.e. 19.09.2002 when the accused as well as the complainant failed to appear, the complaint was dismissed in default by the trial Court for want of presence of the complainant. 5. As per the contentions raised by counsel for the petitioner, the aforesaid mistake has occurred on account of the incorrect noting of the date in the case diary. 6. It is settled proposition of law that a party cannot be made to suffer, if any, mistake has been committed by his lawyer as important questions of law and facts are involved in the complaint submitted by the petitioner, which is required to be adjudicated on (3 of 3) [CRLMP-175/2018] the basis of the evidence of both sides. Even otherwise as per the provisions contained under Section 256 Cr.P.C., if the summons have been issued on the complaint and on the day appointed for the appearance of the accused, the hearing of the case may be adjourned if the complainant fails to appear before the trial Court. The aforesaid provision is quite applicable in the facts and circumstances of the instant case. The learned Trial Judge instead of dismissing the complaint in default, could have deferred the complaint for another day as the trial was at the stage of appearance of the accused before the trial Court. 7. In the considered opinion of this Court, the impugned order dated 19.09.2002 is not sustainable in the eyes of law and the same is liable to be and is hereby quashed and set aside. 8. The instant misc. petition stands allowed. The complaint submitted by the complainant before the Trial Court is restored to its original number. The Trial Court is directed to restore the complaint to its original number and summon the accused by appropriate mode of summoning and after service of the accused and after his appearance before the Trial Court, all possible endeavours would be made by the Trial Court to decide the pending complaint expeditiously as early as possible as the matter pertains to the year 2002. 9. Stay application and all pending application(s), if any, also stand disposed of. 10. The summoned record from the Trial Court be sent back immediately. (ANOOP KUMAR DHAND),J Ashu/13