Important Point
If presence of complainant on that day is quite unnecessary then resorting to the step of axing down the complaint under Section 256 Cr.P.C. may not be a proper exercise of power envisaged in the section.

Order

V. Kanagaraj, J.— This Criminal Appeal has been preferred against the Order dated 27-9-2002 made in C.C. No. 192 of 1999 by the Court of Judi-cial Magistrate, Gudiyattam, Vellore District.

2. Tracing the history of the case, it comes to be known that a private complaint filed by the appellant herein before the court below as against the respondent for the offence punishable under section 138 of the Negotiable Instruments Act having been dismissed for non-prosecution under Section 256 (1) of the Criminal Procedure Code, thereby acquitting the respondent, the complainant has come forward to prefer the above appeal on certain grounds as brought forth in the grounds of criminal appeal.

3. When the above matter came up for admission, this Court ordered notice to the respondent. Though the service of notice ordered through the Court is awaited, it is reported that the private notice has been served and the proof of service has also been filed today, in spite of which, the respondent is absent today. Hence, this Court is left with no choice but to pass orders

on hearing the appellant and upon perusing the materials placed on record.

4. Learned counsel appearing on behalf of the appellant would lay emphasis that such an order cannot be passed in law, particularly in view of the fact that a definite judgment has been rendered by the Apex Court reported in Associated Cement Co. Ltd. v. Keshva-nand1, wherein the Apex Court has given the Code that is to be followed by the Courts in the following manner.

“Reading the Section in its entirety would revel that two constraints are imposed on the Court for exercising the power under the Section. 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 has the power to dis-pense 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 compl-ainant 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 compl-ainant on that day was quite unnecessary then resorting 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.”

5. Following the above dictum of law and since the appellant before this Court would give convincing reasons for his absence before the lower court on the particular day, this Court is of the view that it is absolutely wrong on the part of the lower court to have passed an order acquitting the accused and dismissing the complaint for non-appearance of the complainant where the substantial rights of the parties are involved.

6. In all probabilities, the above appeal deserves to be allowed, for a decision to be made by the Lower Court on merits and in accordance with law.

In result,

(i) the above criminal appeal succeeds and the same is allowed.

(ii) The Judicial Magistrate, Gudiyattam, is hereby direc-ted to take up C.C.No. 192 of 1999 on file and with due notice to the parties, shall continue the trial and decide the matter on merits and in accordance with law.

Appeal allowed.

1. AIR 1998 S.C. 596.