IMPORTANT POINT
The court established that a complaint under Sec. 138 of the Negotiable Instruments Act cannot be dismissed solely due to the absence of the complainant when the case is at a stage awaiting the return of a non-bailable warrant.

JUDGMENT/ORDER

1. Present appeal is preferred by the appellant challenging the order passed by the Judicial Magistrate First Class, Washim for dismissing the complaint as the complainant was absent in Summary Criminal Case No. 24/2016 dtd. 02/07/2019. The appeal is dismissed by observing that though summons has been issued to the complainant, and on the day of appointed on the appearance of the accused, or any day subsequent thereto which the hearing is adjourned. The complainant does not appear and dismissed the complaint.

2. Heard learned counsel for the appellant. The respondent served but failed to appear before this Court.

3. Learned counsel for the appellant submitted that present appellant has filed complaint under Sec. 138 of the Negotiable instruments Act against the respondent/ accused on the submissions that respondent is a proprietor of Siddhiki Tours and Travels. The complainant and the accused being friends known each other since long and out of the trust, the amount of Rs.10, 00, 000.00 was paid to the respondent. The complainant has paid Rs.7, 00, 000.00 by online transaction and Rs.3, 00, 000.00 is paid to the accused in cash. On demand, the accused issued a cheque bearing No. 376126 of account no. 3015575109. The said cheque was deposited by the complainant in his account but said cheque was not honored and returned back with endorsement funds in sufficient. Thereafter, the complainant had issued a legal notice to the accused by registered post acknowledgment and demanded the amount. However, accused failed to pay amount, therefore, the complainant preferred the criminal complaint before the learned Judicial Magistrate First Class, Washim.

4. Learned trial Court after verification of the complaint document placed on record, issued process against the accused vide order dtd. 15/03/2016. On 13/06/2016, a report from Ambooli Police Station was received and on that day, the learned counsel for the complainant had filed application for issuance of warrant. Thereafter, the matter was posted for return of summons. Subsequently, the learned trial Court had issued the bailable warrant against the accused and was fixed for return of the same. Thereafter, on various dates, the learned counsel for the appellant was present and the matter was fixed for return for bailable warrant issued against the accused/respondent..

5. Learned counsel submitted that since the non- bailable warrant was not returned back then matter was fixed for arrest warrant of the respondent as the matter was posted for return of the non-bailable warrant. The complainant was not present, and the learned trial Court has dismissed the complaint. In fact, the presence of the complainant was not required on that day, as the matter was fixed for return of non-bailable warrant. He submitted that the learned Judicial Magistrate First Class has dismissed the complaint erroneously without considering the provision and therefore, the order passed by the learned Judicial Magistrate First Class deserves to be set aside.

6. In support of his contention, he placed reliance in the case of Baliram Ramchandra Patil V/s Ashok Pundlaik Patil reported in 2017 ALL MR (Cri)3089, wherein this Court considered the scope of Sec. 256 of the Code of Criminal Procedure, and held that the case was lying at the stage of service of summons. In default of taking steps, at the most, the complaint could have been dismissed by exercising the powers under Sec. 204 (4) of Code of Criminal Procedure and not in exercise of powers under Sec. 256 of the Code of Criminal Procedure and therefore, the impugned order is not sustainable in law.

7. In order to appreciate the submissions advanced, I have perused the record. The appellant has also placed on record the copy of the Roznama. Perusal of the Roznama shows that the complaint was filed under Sec. 138 of the Negotiable Instruments Act. On due consideration of the fact and the verification, learned Magistrate has passed the order of issuance of pr