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Section 138 of ni act & section 397 of cr. p. c

(Querist) 07 January 2012 This query is : Resolved 
I have filed a revision against the order of the MM, who dismissmed my compalint in default. I have filed the revision before Session Court who suggest me to withdraw the same and filed before high court because of Dhingra's judgement. Ld. Court told me that the Sessions court does not have the power. Kindly provide the details of judgement if any body have or put some light over the issue in question. The reason for the dismissed in default is non appearance only once. This is only due to problem while noting the date into diary
ajay sethi (Expert) 07 January 2012
please state the complete facts of your case . why was complaint dismissed in default?
ganesh kumar (Querist) 07 January 2012
due to non appearance only once, due to wrong date mentioned in the diary
Advocate. Arunagiri (Expert) 07 January 2012
Did the MM ordered notice to you before dismissal for default?
ajay sethi (Expert) 07 January 2012
generally MM do not dismiss the case if advocate or party has remained absent only once

Negotiable Instruments Act, 1881, S.138 - Dishonour of cheque - Dismissal of complaint in default - Magistrate cannot order restoration of complaint even if complainant shows very good reasons for his failure to be present on the date of dismissal of complaint - The only remedy available to the complainant is to approach High Court u/s 482 Cr.P.C. for setting aside the order of dismissal of complaint. (Om Parkash Vs M/s.Golden Forest India Ltd. & Ors.) 2008(3) Civil Court Cases 105 (P&H) : 2008(2) Criminal Court Cases 429 (P&H)

Nadeem Qureshi (Expert) 07 January 2012
Dear ganesh Mr. ajy Sethi is right explained, I am agree with him
Raj Kumar Makkad (Expert) 07 January 2012
The direction of sessions court is accurate.
Devajyoti Barman (Expert) 07 January 2012
But what is the judgement of Mr Dhingra?
The order of the Magistrate is always Revisable which could be exercised by either the Sessions Court or the High Court u/s 397 or 40 crpc respectively.
Raj Kumar Makkad (Expert) 08 January 2012
Special acts do not come within the general law so the advice of sessions court is proper.
Shonee Kapoor (Expert) 08 January 2012
You have been rightly guided.


Shonee Kapoor
DEFENSE ADVOCATE.-firmaction@g (Expert) 08 January 2012
This is a final order to revision will lie before sessions court. So in the present situation seek an order instead of withdrawal so that it will simplify matter for further revision to HC.
Dhiren Akbari (Expert) 08 January 2012
in similar case i have taken order from Bombay High Court to restore the case. the opinion expressed by other experts to approach High Court is right.
prabhakar singh (Expert) 08 January 2012
Use 482 Cr.P.C.,move high court.
V R SHROFF (Expert) 09 January 2012
go to HC u/s 482
R Trivedi (Expert) 16 January 2012
Generally session courts do not ask the party to withdraw and approach high court. Although u/s 482 parties have right to approach the high court under special circumstances and high court does entertain such cases. In your case the matter possibly dismissed by the MM under Section 256, although MMs are supposed to give a notice for first default but then GOD bless them. Approach the HC with bonafide reasons for absence, please understand it is not important that you should be given a chance just because you were absent for a day only, you must have solid reason for the same.

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