Criminal Misc. No. M-22138 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-22138 of 2011 (O&M) Date of Decision : 25.7.2011. Vijay Kumar ...... Petitioner Versus M/s Asha Provisions Store ...... Respondent CORAM : HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Navkesh Singh, Advocate, for the petitioner. NAWAB SINGH J.(ORAL) By filing this petition, under Section 482 of Code of Criminal Procedure (for short “the Code”), petitioner-accused seeks quashing of complaint titled M/s Asha Provisions Store versus Vijay Kumar under Section 138 of Negotiable Instrument Act and subsequent proceedings arising therefrom. 2. Learned counsel for the petitioner-accused has urged that on January 15th, 2007, complaint filed by the respondent- complainant was dismissed for want of prosecution and subsequently vide order dated July 11th, 2008 (Annexure P-5) the Magistrate restored the same without issuing him notice. Thereafter, the petitioner moved an application for dismissal of the complaint but the application was dismissed by the learned Magistrate on July 5th, 2011. 3. By referring to aforesaid orders, it has been argued that the learned Magistrate fell in error in restoring the complaint as once the complaint was dismissed in default that amounted to acquittal of the accused-petitioner per Section 256 of the Code. 4. Section 256 of the Code reads 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 Criminal Misc. No. M-22138 of 2011 2 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) xxxx A reading of the Section shows that it is applicable when the summons are issued to the accused and on the appointed date, complainant does not appear, the Court may acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other date. 5. In the case in hand, summons were not issued to the petitioner on the complaint filed by the complainant-respondent. Summoning order was passed on January 1st, 2009. Even on the day when the complaint was dismissed for want of prosecution preliminary evidence was not led by the complainant before the Court. So, petitioner-accused can not take benefit of the provision of Section 256 of the Code. In view of this, no interference is required in the impugned orders passed by the Court below. 6. Dismissed. (NAWAB SINGH) JUDGE 25.7.2011. SN