IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 372 of 2008. Decided on: April 02 , 2009 _____________________________________________________________ Boby …. Appellant. Versus Vineet Kumar. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. V.S. Chauhan, Advocate. For the respondent : Mr. Vikram Thakur, Advocate. _______________________________________________________ SURINDER SINGH,J (oral): The appellant was a complainant in complaint No.120-3 of 2007, filed under Section 138 of the Negotiable of Instruments Act, in short ‘the Act’ against the respondent. The complaint was dismissed in default vide order dated 25.7.2007 by the Judicial Magistrate, Court No.(3), Shimla, which has an effect of acquittal. Against dismissal of her complaint, the appellant herein preferred a revision petition in the court of Sessions, which was withdrawn on 6.6.2008, perhaps realizing that the revision was not competent and the order was appealable. As such, the present appeal Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - has been filed, assailing the order of dismissal in default, which was barred by limitation, however, vide order dated 26.2.2009, the delay was condoned. I have heard the learned counsel for the parties and have examined the record. As a matter of fact, the appellant had filed a complaint before the learned trial court on 30.3.2007. The preliminary evidence by affidavits was led before the learned trial court on 10.5.2007, on considering the complaint, the documents appended thereto and also the affidavits filed in support of the complaint, the learned trial court found reasonable grounds to summon the respondent as an accused, under Section 138 of the Act, which is summons case, as such, he was ordered to be summoned for 28.6.2007. The summons were not received back on that day as indicated in the column of zimini order, but this fact was not recorded in the zimini order, passed by the Judicial Magistrate below, but however, he ordered to summon the accused-respondent for 25.7.2007, on filing of the process fee within three days. - 3 - The matter was adjourned for 25.7.2007, but on that day neither the complainant nor her counsel was present, as such, the learned Judicial Magistrate Ist Class, Court No.3, Shimla passed the following order: “25.7.2007 Present: None. It is 4.05 P.M. Case called thrice, nobody appeared on behalf of complainant. Hence this present complaint is hereby dismissed for non-prosecution. File after completion be consigned to the record Room. Sd/- (J.L.Azad) Announced. Judicial Magistrate Ist 25-7-07 Class (3) Shimla.” In this appeal, the appellant has tried to explain her absence on the day aforesaid when it was dismissed in default, which may not be very much relevant here, but however, the order of dismissal of the complaint aforesaid is quite indefensible. The learned trial Magistrate appears to have not applied his mind to the provisions of Section 256 of the Code of Criminal Procedure, hereinafter to be referred as “the Code”, which 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 - 4 - 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) 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 N.K. Sharma versus M/s Accord Plantations Pvt. Ltd. and another [Latest HLJ 2008 (HP) 1249], this court was confronted with the similar proposition. However, following the judgment of the apex Court in Associated Cement Co. Limited versus Keshvanand [(1998)1 Supreme Court Cases 687], noticed that the section aforesaid imposes two constraints on the Court for the exercise of powers for dismissing the complaint; firstly, if the court thinks in a situation it is proper to adjourn the - 5 - hearing then the Magistrate shall not acquit the accused and secondly, when the Magistrate considers that the 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. Thus 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 unnecessary, then resorting to the step of axing down the complaint may not be a proper exercise of the powers, envisaged in the section. Therefore, the discretion in the aforesaid section has to be exercised fairly and judiciously without impairing the cause - 6 - of administration of criminal justice, which should be spelt out from the order passed by the court. In the facts in hand, the learned trial Court has given a complete go bye to the essential requirements of Section 256 of the Code and did not record the reason whether the presence of complainant was essential for the progress of the case, which on facts was not; therefore, the impugned order is indefensible, thus unsustainable, thus, set- aside. Consequently, the complaint aforesaid is remanded back to the learned trial court for its disposal in accordance with law. It shall be entered against its original number. Parties are directed to be present before the learned trial court on 23.4.2009. The Registrar General of this Court is directed to circulate the copy of this judgment to all the subordinate courts, to adhere to the provisions of Section 256 of the Code, in the light of the observations made hereinabove. Records of the Courts below be returned forthwith. Accordingly the matter stands disposed of. April 02, 2009. (Surinder Singh), (Pds) Judge. - 7 -