@JUDGMENTTAG-ORDER
S.C. Parija, J.@mdashThe Petitioner has filed this application u/s 482 Code of Criminal Procedure challenging the order of the Learned J.M.F.C., Bhubaneswar dated 28.10.2005 passed in I.C.C. No. 2504 of 2004, under which the complaint of the Petitioner has been rejected and the accused has been acquitted u/s 256 Code of Criminal Procedure., for non appearance of the Petitioner.
2. The Petitioner had filed complaint u/s 138 of the Negotiable Instrument Act (for short ''Negotiable Instruments Act'') against the Opposite Party and the Learned S.D.J.M., Bhubaneswar took cognizance of the offence u/s 138 of the Negotiable Instruments Act and issued summons to the Opposite Party. The case was subsequently transferred to the file of Learned J.M.F.C., Bhubaneswar.
3. The case of the Petitioner is that on 10.5.2005 while the aforesaid Complaint Case (I.C.C. No. 2504 of 2004) was transferred to the file of Learned J.M.F.C., Bhubaneswar, no date was mentioned in the file for appearance of the Petitioner (complainant). The Learned Magistrate received the records of the case on 2.6.2005 and posted the case to 22.6.2005 without any notice by way of summon or intimation to the Petitioner. Hence, the Petitioner was not aware of the posting of the case and subsequently from Order Dated 6.9.2005, the Petitioner was surprised to learn that the Learned Magistrate has noted in the said order that the complainant has filed a petition for trial to adduce evidenced and accordingly time was allowed till 25.10.2005. The Petitioner submits that he had no knowledge of the transfer of case to the file of the Learned J.M.F.C., Bhubaneswar and there was no question of the seeking time on 6.9.2005, as he was not aware of the said date nor about the proceeding before the Learned J.M.F.C. It is specifically submitted that the Petitioner (complainant) has never sought for time or had filed any petition in that regard and the Learned J.M.F.C. has wrongly noted the same in its Order Dated 6.9.2005 and had posted the case to 25.10.2005. On that date, the Learned Magistrate had noted the non-appearance of the Petitioner and posted the matter to 28.10.2005. On the said date, the Learned Magistrate has proceeded to reject the Petitioner''s complaint and acquitted the accused u/s 256 Code of Criminal Procedure on the ground of absence of the complainant, about which the Petitioner came to know much after, on verification of the Court records.
4. On perusal of the L.C.R., it is found that no petition has been filed by the Petitioner (complainant) on 6.9.2005 on the basis of which the Learned Magistrate has passed Order Dated 6.9.2005. The petition available on record goes to show that the same had been filed on behalf of the accused (Opposite Party) praying for 30 days'' time for hearing of the case. The L.C.R. further reveals that no notice had been issued to the Petitioner after transfer of the case to the Court of Sri E.B. Rao, J.M.F.C., Bhubaneswar and the Learned Magistrate has proceeded to reject the Petitioner''s complaint without any notice to the complainant. It is clear from the L.C.R. that the Learned Magistrate has passed the Order Dated 6.9.2005 under a misconception inasmuch as the complainant had not filed any petition for time and rather the accused (Opposite Party) had prayed for time as is evident from the petition of the accused dated 6.9.2005. The entire proceeding subsequent to the Order Dated 6.9.2005 seems to have been conducted without any notice to the Petitioner (complainant) and the impugned order, rejecting the Petitioner''s complaint, has been passed solely on the ground of non-appearance or absence of the complainant. This shows the mechanical manner in which the Learned Magistrate has proceeded in the matter, without application of mind.
5. This Court expresses its concern and displeasure at the manner in which the Learned Magistrate has conducted himself in dealing with the case. It is a well established principle of law that an act of the Court shall not prejudice any man, as per the legal maxim ''actus curiae neminem gravabit''. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.
6. In view of the above, the impugned order of the Learned J.M.F.C., Bhubaneswar dated 28.10.2005 passed in I.C.C. No. 2504 of 2004 is quashed and the said complaint case is restored to file and the Learned Magistrate is directed to proceed with the case after due and proper notice to the parties in accordance with law. As the case is of the year 2004, the Learned Magistrate shall do well to expedite hearing of the case.
7. The CRL.MC is accordingly allowed.
8. Crl. MC allowed.
