IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 156 of 2009. Date of Decision: 3rd May, 2010. _______________________________________________________ M/S. Bhagra Steels Sales Pvt. Ltd. ….Appellant. Versus Shri Sunil Mohan …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. R.P. Singh, Advocate. For the respondent : Mr. Sanjeev Sood, Advocate. ____________________________________________________ SURINDER SINGH, J. (Oral) 1. The appellant filed a complaint against the respondent under Section 138 of the Negotiable Instrument Act, 1881, in short “the Act” before the learned Chief Judicial Magistrate, Shimla. 2. Preliminary evidence was recorded on 14th September, 2006. The respondent was ordered to be summoned as an accused. When his presence could not be procured in the ordinary way, bailable warrants were ordered to be issued vide order dated 17th May, 2007. The learned trial Court was unsuccessful to procure the presence of the respondent for want of correct address, Whether reporters of the Local papers are allowed to see the judgment? - 2 - therefore, vide order dated 7th August, 2008 correct address was required to be filed again alongwith process fee. Record reveals that twice the appellant committed default to comply with the order of the Court and the case was ultimately adjourned for 3rd March, 2009 for the presence of respondent, on which date neither the complainant nor his counsel put in appearance and as such the complaint was dismissed in default and the said order reads as follow:- “Case called twice but none appeared. None appeared in the morning. Even correct address of the accused has not been filed. It appears that complainant is not interested in pursuing the complaint and has not appeared intentionally. Hence, the complaint is dismissed in default. The file after needful be consigned to records. CJM”. 3. The effect of the order aforesaid is the acquittal of the respondent, hence the present appeal. Leave to appeal was granted and the appeal was admitted. 4. Heard and gone through the record. 5. Although, the appellant has tried to explain in the appeal the reasons for his absence and the learned Counsel for the appellant submitted that the address of the respondent was correct. Respondent deliberately avoided the service of the process issued by the Court. The address supplied was correct and even in appeal he was served on the same address. - 3 - 6. The question which arises for determination in this appeal is whether the learned Chief Judicial Magistrate was justified in dismissing the complaint for want of the complainant or his counsel? 7. Section 256 of the Code of Criminal Procedure deals with such type of eventualities. It 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 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 whether 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.” 8. The perusal of the aforesaid Section in its entirety reveals that two constraints are imposed upon the Court for exercising the powers 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 the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate may dispense with his attendance and - 4 - proceed further with the case. 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. But if the presence of the complainant, on that day was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of the power, envisaged in the Section. 9. This case is covered by the judgment of this Court rendered in N.K. Sharma v. M/S Accord Plantations Pvt. Ltd. And another, reported in Latest HLJ 2008(2) 1250. 10. In view of this the impugned order dated 3rd March, 2009 is wrong and illegal. Resultantly, the appeal is allowed. The parties are directed to be present before the learned trial Court on 28th May, 2010 and the learned trial Court shall proceed in the matter in accordance with law. 11. Send down the record forthwith. May 3, 2010. (Surinder Singh), J. (rc)