IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 11 of 2010. Decided on: October 8, 2010. ____________________________________________________________ Tikam Ram ……..Appellant. Versus The Trail Blazer Construction (P) Ltd. And another. …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. V.S. Chauhan, Advocate. For the respondent : Mr. C.S. Thakur, Advocate. ____________________________________________________________ SURINDER SINGH,J (oral): The complaint preferred by the appellant under Section 138 of the Negotiable of Instruments Act against the respondents was dismissed in default by the learned trial Court, which has the effect of acquittal of the accused-respondent. Thus, it has been challenged after seeking leave to appeal. 2. Heard and gone through the record. 3. A perusal of the record of the learned trial Court reveals that vide order dated 8th June, 2009, the learned trial Court had taken the cognizance of the said offence and ordered for the issuance of Whether reporters of the Local papers are allowed to see the judgment? - 2 - summons against the respondents, the case was accordingly adjourned for 23rd July, 2009. On the said date, respondents were not present, as such, bailable warrants were issued for 10th September, 2009, but again the respondents failed to put in appearance, thus the last order was repeated. Ultimately, the case was adjourned for 20.10.2009, on which date the complaint was dismissed in default for want of presence of the complainant. 4. Repeatedly this Court had expressed its concern that the cases should not be dismissed in default unless the presence of the complainant is necessarily required before the Court by interpreting the provision of Section 256 of the Code of Criminal Procedure, which deals with non-appearance or death of complainant, but till date the learned Magistrate has feigned and exhibited his ignorance about it. 5. A perusal of the section aforesaid in its entirety reveals that two constraints are imposed upon the Court for exercising the powers under this Section which are as under:- - 3 - (i) If the Court thinks in a situation, it is proper to adjourn the hearing then the Magistrate shall not acquit the accused; and (ii) When the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate may dispense with his attendance and proceed further with the case. 6. When the Court notices that the complainant is absent on a particular day, it is imperative for the Court to see whether the personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned, the Court is free to dismiss the complaint and acquit the accused. To arrive at such a conclusion, it is incumbent on the Magistrate to pass a reasoned order for doing so. 7. In the instant case what to talk of passing a reasoned order, he appears to have mechanically passed the order impugned to score the disposal point. The perusal of the zimni order reveals the presence of the complainant on that day was quite - 4 - unnecessary, then resorting to the step of axing down the complaint as has been done in the instant case was absolutely not a proper exercise of the power exercised by the Magistrate. { See N.K. Sharma v. M/s According Plantations Pvt. Ltd. And another [Latest HLJ 2008(2) 1250] Latest HLJ 2009 (1) 723 and M/s Bhagra Steels Sales Pvt. Ltd. v. Shri Sunil Mohan [ 2010 (2) Him.L.R. 913 } 8. In view of aforesaid situation, the order of 20th October, 2009 dismissing the complaint by the learned trial Court is wrong and illegal, thus set-aside consequently, the appeal stands allowed. 9. Parties are directed to be present before the learned trial Court on 28.12.2010 and the learned trial Court is hereby directed to proceed in the matter in accordance with law. The long date is given on the request of his learned counsel for the respondents, on the ground that the respondent No.2. has gone to Bhutan and would return in the middle of December, 2010. 10. It is made clear that in case respondents shall not put in appearance before the learned trial Court - 5 - on the date fixed, it shall take coercive method to secure his presence. 11. Disposed of. 12. Send down the records. (Surinder Singh), Judge. October 8, 2010 (Pds)