1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 786-M of 2008 Date of Decision: 23.7.2009 *** Devender Arora, .. Petitioner Vs. Raj Kumar Sharma .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Hari Om Attri, Advocate for the petitioner. *** ARVIND KUMAR, J. Through the instant petition, a challenge has been laid to the order dated 23.10.2007 passed by Additional Chief Judicial Magistrate, Faridabad by dint of which the complaint filed by the petitioner- complainant under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed in default on account of non-appearance of the complainant. The argument of learned counsel for the appellant is that the complainant could not appear before the Court on the date fixed on account of his illness, so as his counsel since he was busy in some other Court, as such the absence was not intentional. There is no representation for and on behalf of the respondent. This Court is of the opinion that the petition deserves to be allowed. The explanation given by the petitioner appears to be genuine. It is always in the interest of justice that the matter should be adjudicated on merits. Moreover, there is no gain in saying that no benefit could be drawn by the complainant in not appearing in the Court intentionally because it is his own complaint involving money matter. Even otherwise a 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 would 2 amounts to dismissal of complaint. The Court, if think proper, may proceed with the case. The impugned order thus, passed by the court below seems to be harsh in the circumstances of the case. But since the petitioner 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 petition is allowed and the order dated 23.10.2007 passed by the learned Magistrate dismissing the complaint of the petitioner in default, is set aside subject to payment of costs of Rs.15,000/-. The learned Magistrate shall restore the complaint to its original number and shall further proceed with the case right from the stage, it was dismissed and dispose it of expeditiously, on merits that too on payment of cost by the petitioner to the respondent-accused. The petitioner is directed to appear before the trial court on 20.8.2009. (ARVIND KUMAR) JUDGE July 23,2009 Jiten