1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B.Criminal Misc. Petition No.1249/2006 Rama Devi vs. Deepak Agarwal Date of Order ::::: February 9,2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.Bhupendra Pareek for the petitioner Mr.Anil Jain for the respondent A complaint under Section 138 of the Negotiable Instruments Act was lodged by the petitioner against respondent in the Court of Addl. Chief Judicial Magistrate No.1, Jaipur City, Jaipur and while remaining pending the proceedings an order for non-prosecution of the complaint was passed on 6.6.2005 and the complaint of the petitioner came to be dismissed by the said order. Feeling aggrieved of the order of the trial court dismissing the complaint, the petitioner has filed the present misc. petition under Section 482 Cr.P.C. Heard learned counsel for the petitioner and learned counsel for the respondent. 2 Learned counsel for the petitioner submits that the impugned order specifically reveals that it has been passed due to non-appearance of the complainant and the proceedings have been dropped in a matter under Section 138 of the Negotiable Instruments Act which was fixed for evidence. The complaint is certainly a private complaint but the lower court has not specified under which provision the proceedings have been dropped. Whether it was under Section 249 or 246 Cr.P.C. Referring to the order-sheets submitted along with the file learned counsel for the petitioner submits that on the earlier dates the complaint was not present and that the matter was called twice. As the complainant did not appear, the complaint was dismissed. Although the complainant was represented by an advocate but the advocate also did not appear. On the strength of the above submissions learned counsel for the petitioner submits that the order passed by the trial court amounts to misuse of the process of law and also against the interest of justice. Learned counsel for the respondent supporting the impugned submits that no interference is required to be called for in the impugned order. 3 After hearing learned counsel for the parties, I have gone through the impugned order and also gone through the relevant provisions of the Cr.P.C. Under Section 202 Cr.P.C. there is no provision about acquittal or discharge of the accused on the failure of the complainant to attend the court. As per Section 249 Cr.P.C. if on the date fixed if the complainant is absent and the offence is legally compounded, the Magistrate may in his discretion at any time before the charge is framed, discharge the accused and under Section 256 Cr.P.C. trial by Magistrate of summon cases if the complainant does not appear the Magistrate by using his discretion can adjourn hearing of the case. If the complainant is represented by an advocate his personal appearance will not be regarded as indispensable. Absence of a complainant on the date of hearing should not be a ground for acquittal of the accused or dropping of the proceedings unless on repeated adjournments neither the counsel nor the complainant appeares. In the instant case on the last dates the complainant was not present in the court and the Magistrate has called the matter twice on the 4 same day but neither the complainant nor her counsel appeared. Looking to the nature of the offence and the complaint lodged it was incumbent upon the Magistrate either to have waited for the complainant or her counsel or to have adjourned the case for recording evidence to any other date as the case was fixed for evidence. In the facts and circumstances of the case and looking to the nature of the offence and also the adjournment given, I am of the opinion that while dismissing the complainant, the Magistrate has acted in haste. In the facts and circumstances of the case a further opportunity to lead evidence should have been provided to the complainant. Hence, this petition deserves to be allowed. Consequently, this misc. petition is allowed and the impugned order of the trial Magistrate dated 6.6.2005 dismissing the complaint of the complainant petitioner is, hereby, quashed and set aside. The matter is remanded back to the trial Magistrate for deciding the complaint on merits after giving one more opportunity to the complainant petitioner to lead her evidence. The trial Magistrate is also directed to issue notice 5 to both the parties fixing the next date in the case and in case the petitioner does not lead or produce her evidence on the next date fixed in the matter in this regard, the trial Magistrate will be free to decide the matter in accordance with law. (Bhanwaroo Khan),J. bairwa