Y.K. Sabharwal and P.P. Naolekar, JJ.—Leave granted.

2. Complaints, bearing Cases Nos. 118/F of 1997, 120/S of 1997, 121/S of 1997, 119/S of 1997 and 122/S of 1997 dated 19.12.1996, u/s 138 of the Negotiable Instruments Act, were filed by one Ismat Merchant against the Respondent. The said complaints were dismissed by the learned Magistrate on 7.9.2002, on an application filed by the Respondent for dismissal thereof. It was pointed out to the Court by counsel for the accused that the complainant had committed suicide and report to that effect had appeared in the newspaper. In this view, allowing the application of the accused, the complaints were dismissed for non-prosecution. The brother of the original complainant challenged the order dismissing the complaint before the High Court in criminal appeals which have since been dismissed by the impugned order.

3. From the material on record, it appears that both the complainant and his mother committed suicide on 5.3.2001 and his father also committed suicide two days later on 7.3.2001. The present Appellant is the brother of the complainant and claims to be the legal heir-legatee of the deceased. It is true, as noticed in the impugned judgment and order, that on two earlier occasions also, i.e., on 10.1.2002 and 4.4.2002, none was present for the complainant. Insofar as the absence of the advocate is concerned, it is evident that on the death of his client, he had no authority to appear. The order-sheet further shows that on the aforesaid two dates, even the accused was not present.

4. Having regard to the facts and circumstances of the cases, we are of the view that interests of justice require that the order of the Magistrate dated 7.9.2002, acquitting the accused, as affirmed by the High Court by the impugned judgment and order, deserves to be recalled so that the complaints can be tried on merits in accordance with law. We may only note that there is no hard and fast rule regarding recalling of such orders.

5. In view of the aforesaid, we allow the appeals, set aside the impugned judgment and order of the High Court and also that of the Magistrate and direct the complaints to be tried on merits.