IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 178 of 2005 Chandraveer Singh …Appellant Versus State of Uttaranchal and another …Respondents Mr. Vinod Sharma, Advocate present for the appellant. Mr. G.S. Sandhu, Government Advocate present for the State of Uttarakhand. Mr. Nagesh Agarwal, Advocate present for respondent no. 2. Hon’ble Sudhanshu Dhulia, J. ( Oral) 1. Heard Mr. Vinod Sharma, Advocate for the appellant, Mr. G.S. Sandhu, Government Advocate for the State of Uttarakhand and Mr. Nagesh Agarwal, Advocate for respondent no. 2. 2. This appeal has been filed by the appellant against acquittal of respondent no. 2. Brief facts of the case are that the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. Thereafter the learned Magistrate after recording the statement of the accused under Section 281 of the Cr.P.C. fixed the date for summoning the accused on 6.10.2004, thereafter on 21.6.2005 the matter was adjourned for 27.7.2005 and the matter was fixed again for statement of the accused on 30.7.2005. On 30.7.2005, when the case was called out none was present and the matter was adjourned for 18.8.2005 for recording the statement of the accused. On 18.8.2005 the case was called out, the complainant was not present though the accused was present. The case, however, was dismissed in absence of the complainant. The order sheet dated 8.9.2005 reads as follows:- “8.9.2005 Case called out complainant is absent accused in present with his Ld. counsel. The case is dismissed is absence of complainant. The accused Shakoor Ali is acquitted U/s 256 Cr.P.C. file be sent to record room.” Section 256 of the Cr.P.C. reads as follows: 2 “256. Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.” 3. Since the matter has been dismissed for non- appearance of the complainant, accused is deemed to have been acquitted. Now appeal has been filed against the acquittal. 4. Learned counsel for the appellant relied upon two decisions of the Hon’ble Apex Court in the case of S. Anand Vs. Vasumath Chandrasekar reported in [2008 AIR SCW 1346] and Associated Cement Co. Ltd. Vs. Keshvanand reported in [1998 AIR SCW 192] wherein it has been held that in case on the particular date the complainant is not present, the matter should not be ordinarily dismissed in absence of complainant if the proceeding can go on in absence of the complainant. In the present case, on the date when the case was dismissed it was listed for recording the statement of the accused. The order sheets shows that the accused was present on the said date. The proper course for court below was to proceed with the matter and record the statement of the accused for which the case was listed. The presence of the complainant or his 3 counsel is actually not required and the statement could not have been recorded in absence of the complainant. Learned counsel for respondent no. 2 has stated that normally an order of acquittal is not to be interfered with as there is a very limited ground for interference in the acquittal case. The counsel for respondent no. 2 has relied upon certain rulings in his favour, however, this will not help the case of respondent no. 2 for the simple reason that we are not dealing with the order of acquittal where the order of acquittal has been passed on merits. Here the learned Magistrate has dismissed the complaint of the complainant on the non appearance of the complainant exercising his power under Section 256 of the Cr.P.C. without going into the merits of the case. Although such an order is deemed to be acquittal of the accused, admittedly the order is not passed on merits but in absence of the complainant. 5. This being the factual position of law and facts, this Court is of the view that the matter should have been proceeded by the learned Magistrate by recording the statement of the accused and it should not be summarily dismissed under Section 256 of the Cr.P.C. 6. As such, for the reasons as stated above, the appeal is allowed. Order dated 8.9.2005 passed by the learned Magistrate, Dehradun is reversed. The court below is directed to proceed with the matter as expeditiously as possible from the stage in which the matter was dismissed by the learned Magistrate. Registry is directed to send back the lower court record. (Sudhanshu Dhulia, J.) Dated: 12.12.2011 VKG