IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 513 of 2009 Decided on: 18.7.2011 Inderjit Bhickta …Appellant. Versus Mahesh Kumar …..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. B.S. Chauhan, Advocate. For the Respondent : Mr. S.C. Sharma, Advocate. Kuldip Singh, Judge(oral) The order dated 26.2.2009, passed in Complaint No.26/3 of 2007 by the learned Chief Judicial Magistrate, Shimla, dismissing the complaint of the appellant, has been assailed in the present appeal. 2. The facts, in brief, are that the appellant had filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent. The learned Chief Judicial Magistrate issued process against the respondent. In October, 2008, the learned Chief Judicial Magistrate was on leave and the case was posted for proper order. The counsel for the petitioner did not appear in the case so also the petitioner and therefore, notice was issued to the petitioner for 26.2.2009. The petitioner could not inform his counsel nor he appeared in the Court on 1 Whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 26.2.2009, the petitioner remained under the impression that the case had been fixed on 27.2.2009. On 27.2.2009, the petitioner had come to the Court and found that his case was not listed on 27.2.2009. The petitioner was not having the notice issued for 26.2.2009, therefore, on enquiry made by his counsel, it was found that the case was listed on 26.2.2009 and was dismissed in default and the respondent was acquitted. In these circumstances, the appeal was filed. 3. I have heard the learned counsel for the parties and have also gone through the record. The respondent appeared in person and he has been duly identified by his counsel. The learned counsel for the appellant has submitted that the learned Chief Judicial Magistrate has not proceeded with the complaint in the spirit of Section 256 of the Code of Criminal Procedure (for short the ‘Code’). The learned Chief Judicial Magistrate has erred in dismissing the complaint and acquitting the respondent. The learned counsel for the respondent has supported the impugned order. 4. The Section 256 of the Code provides that on the date 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 acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Once the accused has been acquitted, the remedy of appeal is available to the petitioner as held in H.P. Agro Industries Corporation Ltd. vs. M.P.S. Chawla, 1997(2) Crimes 591. 3 5. In Associated Cement Co. Ltd. V. Keshvanand, AIR 1998 SC 596, it has been held as follows:- “18. Reading the Section in its entirety would reveal that two constrains are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether 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 unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.” 6. The learned Chief Judicial Magistrate in the impugned order has not recorded a finding that there are no grounds for adjourning the hearing of the case to some other day. The order dated 26.2.2009 indicates that the accused and the appellant were not present on that date, therefore, even in the presence of the 4 appellant no effective and substantive order could have been passed save and except securing the presence of the accused through coercive method. In these circumstances, the learned Chief Judicial Magistrate has not exercised his discretion properly while dismissing the complaint and acquitting the respondent on 26.2.2009. 7. In view of above, the appeal is allowed and the order dated 26.2.2009 is set aside. The case is remanded to the learned Chief Judicial Magistrate, Shimla with a direction to the parties through their counsel to appear before the learned Chief Judicial Magistrate, Shimla on 5.8.2011. The record be sent back immediately so as to reach before the date fixed. ( Kuldip Singh ), July 18, 2011. Judge. (vt)