1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 397 of 2006 a/w Cr. Appeal No. 398 of 2006 Decided on : 04.08.2008 ____________________________________________________________ (1). Cr. Appeal No.397 of 2006 N. K. Sharma Appellant Versus M/S Accord Plantations Pvt. Ltd & another Respondent (2). Cr. Appeal No.398 of 2006 N. K. Sharma Appellant Versus M/S Accord Plantations Pvt. Ltd & another Respondent Coram Hon’ble Mr. Justice Surinder Singh,J. Whether approved for reporting1? Yes. For the appellant : Ms. Shilpa Sood, Advocate. For respondent : None. ____________________________________________________________ Surinder Singh, J. (Oral) Both these appeals have arisen from different orders of similar nature passed on 30.06.2006 whereby the learned trial court dismissed both the complaints, filed by the appellant, under section 138 of the Negotiable Instrument Act, in short the Act, for want of appearance of the complainant. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Consequently, acquitted the respondents. Since common question of law and facts are involved in these appeals, therefore, taken up together for its decision. Arguments were heard and I have examined the record. In brief, the facts giving rise to the present appeals are that Shri N.K.Sharma, appellant herein had filed two separate complaints No.373/3 of 05/02 & 374/3 of 05/01 under section 138 of the Act, against the respondents in the court of learned Chief Judicial Magistrate, Shimla, which were assigned to J.M.I.C. (IV) Shimla for its disposal in accordance with law. Presence of the respondent could be procured, after about three years, that too by resorting to the coercive methods. Notice of accusation was put to the respondents on 12.7.2005 to which they pleaded not guilty and claimed trial. Thereafter, the case was adjourned and fixed for evidence of the complainant repeatedly. Despite, various opportunities neither the petitioner took necessary steps nor his witnesses were produced, ultimately the case was fixed for 26.4.2006, on which date the complainant and his counsel were present but his witnesses were not present. Since the respondent-accused was absent, an application was moved for seeking exemption which was allowed. Again the case was adjourned for the evidence of the complainant for 30.6.2006. On 30.6.2006, the respondent-accused was present with his counsel but neither the complainant nor his counsel was present despite repeated calls, as such the learned trial court passed the following order: 30.6.2006 Present: None for the complainant. Accused in person with Sh. Mahesh Sharma, Advocate. No CWs present. Since the complaint cannot be proceeded in absence of complainant and none appeared on behalf of complainant either in person or through counsel, the present is dismissed. Accused stands acquitted. Personal and 3 surety bonds stands cancelled. Papers after due completion be consigned to record room. Sd/- Judicial Magistrate Ist Class(IV) Shimla In this appeal, the complainant / appellant, has tried to explain the absence taking a ground that the clerk of his counsel had gone to his village and in his place, a part time clerk was engaged and he under the wrong impression, mistook the complainants having been adjourned sine-die on 30.5.2006 and he did not note down the next date of the case, which was actually listed for 30.6.2006 before the learned trial court, as similar complaints were also pending before the District Consumer Forum. On 2.8.2006 the regular clerk of the counsel resumed the work. On checking the diary, he found that there were some discrepancies in the dates. Thus, on 30.7.2006 on inquiry he came to know that both the complaints were dismissed in default on 30.6.2006. This averment made in appeal is irreconcilable because he could not have inquired about the matter on 30.6.2006 when he had joined his duties in his office on 2.8.2006. This ambiguity could not be explained by the learned counsel for the appellant nor the affidavit of the clerk has been filed and it is not an excusable reason which can be taken as a bonafide mistake. Otherwise also, on 26.4.2006 the complainant was present with his counsel and in their presence, the case was fixed for 30.6.2006. If the counsel could not put in appearance what was the cause for the complainant- appellant to stay back, is also not explained. This apart, I also do not find that the learned trial court has applied its mind while dismissing the complaints in accordance with the requirement of section 256 of the Code of Criminal Procedure which reads as under: “256.- Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, 4 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 reasons 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 its entirety, the perusal of the section aforesaid reveals that two constraints are imposed on the court for exercising the power 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 has the power to dispense with the personal attendance of the complainant and proceed further with the matter. 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 un-necessary, then resorting to the step of axing down the complaint may 5 not be a proper exercise of the power, envisaged in the section as held in Associated Cement Co.Ltd. versus Keshvanand (1998) 1 Supreme Court Cases 687. Therefore, the discretion under the aforesaid section has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order passed by the court. Though the procedure of private complaint under section 138 of the Act largely differs from a private complaint in respect of the offences under the Indian Penal Code. But section 256 of the Code of Criminal Procedure quoted above makes no difference whether it is a case under the IPC or the present Act. On going through the impugned order it transpires that the learned trial court did not apply its mind to the provisions of section aforesaid, to the extent that there is no finding of the court that it would be fair and proper to adjourn the matter, in other words it has taken a conscious decision with respect to the presence or absence of the complainant on that day when it dismissed the complaint and acquitted the accused. In absence of it the impugned order is unsustainable and is accordingly set aside. Consequently, both the complaints referred above be now restored & re-registered to its original number by the learned trial court and proceed with the matter in accordance with law. The parties are directed to appear before the learned trial court on 25th August, 2008 and on that date the complainant shall file the process fee, failing which he shall ensure the presence of his witnesses, on the date fixed by the trial court. The Registry is directed to send the records of the trial court forthwith. Both the appeals are disposed of accordingly. August 4, 2008 (Surinder Singh),J. (D) 6