IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 41 of 2008. Date of Decision: 26-11-2008. _______________________________________________________ Nilamber Dutt Bali. Petitioner Versus Karnail Singh. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?. No. For the Petitioner : Mr. Ajay Sharma, Advocate. For the respondent. : Mr. N.K. Thakur, Advocate. Surinder Singh, J.(oral) The matter was fixed for admission today. The record of learned trial Court was also called for. Parties agree for the final disposal of the matter at this stage. Heard and gone through the impugned order. The brief facts giving rise to this petition are that the petitioner herein had filed a complaint against the respondent under Section 138 of the Negotiable Instruments Act which was registered as complaint No. 310-I- 04/127-II-04 in the trial Court. After going through the complaint and preliminary evidence, the accused-respondent was summoned and notice of accusation was put to him on 21-9-2006. Thereafter the case was fixed for the evidence of the complainant but he failed to produce his witnesses on two consecutive dates. The process fee and diet money was also not filed. The case was fixed for 7-2-2007 on which date, he did not put his appearance and the complaint was dismissed in default. The application for restoration was also filed before the learned Whether the reporters of the local newspapers are allowed to see the Judgment? Yes. - 2 - trial Court which was rightly dismissed by the learned trial court for want of jurisdiction to review the order of dismissal aforesaid. Now in the present petition, the petitioner has contended that the learned trial Court could not have dismissed his complaint in default for want of the presence of the complainant, without recording any cogent reasons. I have considered the aforesaid contention. The offence under Section 138 of the Negotiable Instruments Act is a summons Case. Section 256 of the Code of Criminal Procedure applies to it. It provides as under: “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 herein before contained, acquit the accused, unless for some reasons 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 the 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”. (emphasis supplied ) In its entirety, the perusal of the section aforesaid reveals that two constraints are imposed on the court for exercising the power under this section. Firstly, if the court thinks in a situation, it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Secondly, when - 3 - the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter. When the court notices that the complainant is absent on a particular day the court must consider 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 to another date due to any other reason. If the situation does not justify the case being adjourned, the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant, on that day was quite un-necessary, then resorting to the step of axing down the complaint may not be a proper exercise of the power, envisaged in the section as held in Associated Cement Co. Ltd. Versus Keshvanand (1988) 1 Supreme Court Cases 687. Therefore, the discretion under the aforesaid section has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order passed by the Court. Though the procedure of private complaint under Section 138 of the Act legally differs from a private complaint in respect of the offences under the Indian Penal Code, but section 256 of the Code of Criminal Procedure quoted above makes no difference whether it is a case under the IPC or the present Act. On going through the impugned order, it transpires that the learned trial Court did not apply its mind to the provisions of section aforesaid, to the extent that there is no finding of the court that it would be fair and proper to adjourn the matter, in other words it has taken a conscious decision with respect to the presence or absence of the complainant on that day when it dismissed the complaint. In absence of it the impugned order is unsustainable and is accordingly set-aside. Consequently, the complaint referred above be now restored and re- - 4 - registered to its original number by the learned trial Court and proceed with the matter in accordance with law. The parties are directed to appear before the learned trial Court on 22-12-2008 and on that date, the complainant shall file the process fee and diet money to summon his witnesses, failing which he shall ensure the presence of his witnesses, on the date fixed by the trial Court. The Registry is directed to send the records of the trial Court forthwith. The petition is accordingly disposed of. (Surinder Singh) Judge. November 26, 2008. (bm)