1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 555-MA of 2007 Date of Decision: 19.11.2008 *** Anil Kumar .. Appellant Vs. Surinder Singh Bala .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Gaurav Sethi, Advocate for the applicant-appellant. Mr. S.S. Gill, Advocate for the respondent. *** ARVIND KUMAR, J. Heard. Leave Granted. Registry to number the appeal. Through the instant appeal, a challenge has been laid to the order dated 20.7.2007 whereby the learned trial court dismissed for non- prosecution the complaint of the appellant filed under Section 138 of Negotiable Instruments Act filed against the respondent and acquitted the respondent. It has been contended by learned counsel for the complainant that on 20.7.2007 the absence of the complainant was not intention but due to wrong noting of date as 26.7.2007. The perusal of Section 256 Cr.P.C. makes it abundantly clear that in a situation of non-appearance of the complainant, it is open for the Court to either dismiss the complaint or to adjourn the hearing of the case if he thinks it proper. Thus, there is no hard and fast rule that the absence of complainant must have resulted into dismissal of the complaint and accused/ discharge of the accused, as the case may be. It depends upon facts of each case. Admittedly, when the complaint was dismissed on 20.7.2007, it was fixed for evidence of 2 prosecution after serving of notice of accusation upon the respondent and the complaint pertains to the year 2003 and there is nothing on record which is suggestive of the fact that on earlier occasion the complainant-appellant had created such a situation by his non-appearance, which had led the court below to unnecessarily adjourn the case for his presence. In the light of this fact there is no gain in saying that no benefit could be drawn by the complainant by not appearing in the Court intentionally. It is the complaint of the appellant, involving dispute of dishonouring of cheques for an amount of Rs.22,500/-. It is always in the interest of justice that the matter should be adjudicated on merits. Thus, the impugned order passed by the court below seems to be harsh in the circumstances. But since the appellant was somewhat negligent in pursuing his case in a right perspective, he has to compensate the respondent by paying the cost. In view of this, the instant appeal is allowed and the order dated 20.7.2007 passed by the learned trial court dismissing the complaint of the appellant in default, is set aside subject to payment of Rs. 3000/- as cost to the respondent. The matter is remitted back to the trial court with a direction to restore the complaint to its original number and then to further proceed with the case right from the stage, where it was dismissed and dispose it of expeditiously, on merits that too on payment of cost by the appellant to the respondent-accused. It is open for the Court below to ask for the fresh sureties on behalf of the respondent-accused. The parties through their counsel are directed to appear before the trial Court on 18.12.2008. (ARVIND KUMAR) JUDGE November 19,2008 Jiten