IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. MMO No. 566 of 2025 Decided on: 11th July, 2025 Inder Mohan Dewan .......Petitioner Versus Jamil Akhtar ...Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner: Mr. Devinder K. Sharma Advocate. For the respondents: None. Virender Singh, Judge (Oral) Petitioner Inder Kumar has approached this Court by way of the present petition, which has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘the B.N.S.S.’) against the order dated 24.02.2024 passed by learned Chief Judicial Magistrate, Mandi, H.P ( (hereinafter referred 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. -2- to as ‘the trial Court’) in complaint No. 445 of 2020, titled as Inder Mohan Dewan versus Jamil Akthar. 2. By way of order dated 24.02.2024, the learned trial Court has dismissed the complaint under Section 138 of Negotiable Instrument Act (hereinafter referred to as ‘NI Act’) filed by the petitioner, titled as Inder Mohan Dewan vs Jamil Akhtar, in default. 3. In nut shell, it is the case of the petitioner that the said complaint has been filed against respondent Jamil Akhtar under Section 138 of the N.I Act and notices were ordered to be issued against the respondent. Despite the service of the notice, the respondent has not bothered to put appearance before the learned Trial Court. Hence, the learned trial Court has issued the bailable warrants against the respondent firstly on 20.06.2022, and thereafter, non bailable warrants were issued. 4. It is the case of the petitioner that on 24.2.2024 neither the accused/respondent appeared nor produced before the learned trial Court on that day, however, the learned trial Court has dismissed the complaint in default and the personal bond of the accused/respondent was cancelled and surety was ordered to be discharged, whereas according to the petitioner, in this case, accused/respondent has not put appearance on any date and the case was listed for securing his presence. -3- 5. On the basis of above facts, a prayer has been made to allow the petition, by setting aside the order dated 24.02.2025. 6. In order to buttress his contention, the certified copies of the zimni orders, passed by learned trial Court have been annexed by the application. 7. According to the zimni orders, accused/respondent has not put in appearance in this case and on 24.02.2024 (sic) the learned trial Court has passed following order is as under:- “ 24.2.2024 Present : None Be called after lunch Taken up again after lunch. 24.2.2024 Present : As above. Be called after respite Taken up after respite 24.2.2024 Present : As above. Case called repeatedly after intervals during the whole day and awaited uptil 4.00 pm. Non- presence of the complainant does not appear to be un-intentional and non-deliberate. It seems that the complaint is hereby dismissed in default for want of prosecution and the accused is discharged for the commission of offence punishable under Section 138 of N.I Act. The personal bond of the accused is cancelled and his surety stands discharged. The file after its due completion be consigned to the record room. 8. Bare perusal of the said order shows that the said order has been passed by the learned trial Court as if the accused/respondent has put appearance, as, discharge order can -4- only be passed, when the accused put appearance not in his presence. Moreover, when the case was listed for the presence of the accused, then due to the absence of the complainant, the case cannot be dismissed in default. 9. Considering the peculiar facts, the present petition is allowed and the order dated 24.2.2024 is set aside. The complaint is ordered to be restored to its original number. 10. The complainant-Petitioner through his counsel, is directed to put appearance before the learned trial Court on 21.07.2025 at 10 A.M. 11. The learned trial Court is requested to proceed further in the matter, in accordance with law. 12. Pending miscellaneous application(s), if any, also stands disposed of. July 11,2025 ( Virender Singh) (g.m) Judge (G.M) Judge