1 S.B. Criminal Misc. Petition No.167/2010 Kailash Kumar Soni Vs. State of Raj. And Anr. Dated : 12.04.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr.Rishabh Khandelwal,for the petitioner. Mr. Sanjeev K.Mehla, PP for the State. *** By way of this criminal Misc. Petition filed under Section 482 of Cr.P.C., the petitioner has prayed to quash and set aside the orders dated 11th May, 2009 and 11th December, 2009 rendered by Additional Chief Judicial Magistrate No.6, Jaipur City, and Additional Sessions Judge (Fast Track) No.4, Jaipur City, Jaipur respectively. Heard the learned counsel for the petitioner as also learned Public Prosecutor appearing for the non- petitioner-State and perused the relevant provisions of law. A very short question springing for consideration in the instant petition is as to whether the complaint filed under Section 138 of Negotiable Instrument Act, can be dismissed on account of non-appearance of the complainant and his counsel?. Learned counsel for the petitioner canvassed that on account of there being fire in the office of the Court, the file was not traceable and the date was given by the Court. It is true that on 11th May, 2 2009 the complainant was not present in the Court but the learned trial Court without assigning any cogent reason took an extreme view and dismissed the complaint arbitrarily, which was contrary to the provisions of law. He further canvassed that on 11th May, 2009, the case was fixed for appearance of the accused and the presence of the complainant was not required in the Court, hence, in such a situation the Court ought not to have dismissed the complaint and if the complainant was not present, a notice should have been given to the complainant for his appearance in the interest of justce. He cited one case of Abdurehiman Vs. Sethu Madhavan reported in 2008(2) DCR, 120 in support thereof. Learned Public Prosecutor submits that he has nothing to say in the matter. Having reflected over the submissions made by the learned counsel for the petitioner and carefully scanned the order-sheets of the Court filed by the petitioner, it is noticed that the learned Additional Chief Judicial Magistrate No.6, Jaipur City, Jaipur took the cognizance of the offence under Section 138 of N.I.Act on 24th November, 2006 and ordered to issue process for appearance of the accused on filing notices. Thereafter the case was adjourned from time to time. It is further noticed that on 3rd of July, 2008, 3 the complainant was not present. His counsel was also not present. The case was called out many a times but none appeared. However, in the interest of justice, the case was adjourned to 14th October, 2008. On that date too, neither the complainant appeared nor his counsel was present in the Court. The case having been called out many a times, none appeared and the case was again adjourned to 16th February, 2009 to meet the ends of justice. Third time also the complainant or his counsel did not appear. Again the case was adjourned to 11th May, 2009. On 11th May, 2009 also neither the complainant was present in the Court nor his counsel appeared. The case was called out many a times and it was recorded by the learned trial Court that earlier also three times neither the complainant had appeared nor his counsel was present in the Court and the case was adjourned again and again, but, that day he did not find any reason to adjourn the complaint and the same was dismissed for non- appearance of the complainant. Section 256 of Cr.P.C. envisages 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 4 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. From a bare reading of the provisions of Section 256 of Cr.P.C. it is tangible that if the summons are 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. In the instant case, the offence under Section 138 of N.I.Act is punishable with two years imprisonment 5 and fine, twice of the amount of cheque. It is a summons case and the procedure for trial thereof has been laid down by the legislature in Chapter XX of Cr.P.C. 1973. The learned trial Court is found to have taken care of the interest of justice. It cannot be said that on the first day when the complainant or his counsel was not present in the Court, the learned trial Court dismissed the complaint. The case was adjourned four times and on all the four dates neither the complainant nor his counsel appeared in the Court. Ample opportunity was given for the appearance of the complainant or his counsel. The judgment which the learned counsel for the petitioner has cited does not hold good in the instant petition. The judgment delivered in the case of R.Murali Vs. D.Udhayakumar reported in 2008(2) DCR, 118, is based on the judgment of Hon'ble Apex Court delivered in the case of Associated Cement Company Limited V.Keshvanand, AIR 1998 Supreme Court, page 596. The Hon'ble Apex Court has held in this case thus: “Two constraints are imposed on the Court for exercising the power under Section 256. 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 6 has 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 of 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.” In this judgment the Hon'ble Apex Court has categorically observed that if the situation did not justify the case being adjourned, the Court was free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary, then resorting of the step of axing down the complaint could not be a proper exercise of the power envisaged in the section. It is true that on 11th May, 2009, the presence of the complainant was not required nor it was necessary but there must have been somebody to prosecute the 7 case in the Court. It did not happen only on 11th May, 2009 that the complainant was not present in the Court and his counsel was also not present but prior to that day on 3rd of July, 2008, 14th October, 2008 and 16th October, 2008 also neither the complainant was present in the Court nor his counsel was present. Hence, on 11th May, 2009 there was no option left with the learned trial Court but to dismiss the complaint as envisages by Section 256 of Cr.P.C. The learned trial Court is not found to have adopted any erroneous view. His order, in the facts and circumstances of the case, is found to be perfectly just and proper with which I fully concur. It is true that in the interest of justice the complaint, in the absence of the complainant, should not be dismissed for the first time but it is also true that the complainant or his counsel is required to prosecute the complaint before the learned trial Court. The complainant and his counsel both are found to be totally careless in launching the prosecution against the accused as they did not bother to appear continuously on four dates of hearing. The impugned orders, to my firm view, do not warrant any interference and the petition, in view of above, deserves to be dismissed at the threshold. 8 For the reasons stated above, the criminal misc. petition being bereft of any merit, stands dismissed. (MAHESH BHAGWATI)J. Pcg