IMPORTANT POINT
Complaint should not be dismissed on technical grounds.

G.P. Mittal, J. —(Crl. L.P. 318/2012)

1. Leave granted.

2. Registry is directed to register the Petition as an Appeal.

Crl. A./12013

3. The Appellant invokes inherent power of this Court under Section 482 of the Code of Criminal Procedure (the Code) for setting aside the order dated 30.03.2012 whereby a complaint under Section 138 of the Negotiable Instruments Act, 1881 (the N.I. Act) was dismissed by the Metropolitan Magistrate (‘MM’) for non appearance of the Complainant, that is, the Petitioner herein and the accused, that is, the Respondent was acquitted.

4. As per the averments made in the Appeal, the Appellant have paid a sum of Rs.2.70 lacs to the Respondent for supply of certain goods. The Respondent failed to supply the goods and, therefore, issued a cheque No. 199005 dated 21.04.2009 towards the reimbursement of the amount. When the said cheque was presented by the Petitioner it was dishonoured on account of ‘insufficient funds’. A legal notice dated 30.04.2009 was served and on account of non-payment of the amount within the statutory period, a complaint under Section 138 of the N.I. Act was filed. A perusal of the Trial Court record reveals that Respondent was not appearing in the Court. On 08.02.2012 none appeared on behalf of the Complainant, that is, the Appellant, the Respondent was also not present. The learned ‘MM’ entertained certain doubts regarding genuineness of the medical certificate produced for exemption of the Respondent and directed the Respondent to produce the record of Talwar Medical Centre, which issued the medical certificate.

5. On 16.03.2012 none was present on behalf of the Appellant and the case was adjourned for 30.03.2012. On this date again none appeared on behalf of the Complainant/Appellant and the complaint was dismissed for non prosecution and the accused, that is, Respondent was acquitted. It is urged by the learned counsel for the Appellant that the counsel for the Appellant did not appear in the Court. No information was given by him to the Appellant that he would not be able to appear. The Appellant was not aware of the dates and thus, this lapse had occurred on the part of the Complainant.

6. On the other hand, learned counsel for the Respondent argues that the Appellant cannot be given the luxury to appear at his own Will and, therefore, the learned ‘MM’ was fully justified in dismissing the complaint for non appearance of the Complainant and acquitting the Respondent.

7. Under Section 256 of the Code, the Magistrate has discretion to dismiss the complaint if on any date fixed for hearing the Complainant fails to appear in the Court. At the same time, if the Magistrate finds that there is some reason or that the presence of the Complainant was not required, he in his discretion can adjourn the complaint.

8. A perusal of the order dated 16.03.2012, by which the case was listed for 30.03.2012, on which date it came to be dismissed in default, shows it was not listed for any particular purpose. Rather, the case was fixed only for appearance of the complainant.

9. In Associated Cement Company Limited v. Keshvanand1 the Supreme Court observed that the provisions of Section 247 of the Code of Criminal Procedure, 1898 (Section 256 in the New Code) have been incorporated to provide some deterrence against dilatory tactics on the part of a Complainant who sets the law in motion through his complaint. An accused who perforce has to attend the Court on all posting days can be put too much harassment by the Complainant by his absence.

10. In the instant case, according to the Appellant, absence was not intentional but on account of the fact that counsel for the Complainant could not appear and he was not aware of the date. Admittedly, the Petitioner would not have intentionally allowed the complaint to be dismissed in default as his valuable right of proceeding in the complaint, under Section 138 of the N.I. Act, wherein a cheque for Rs.2.70 lacs has been dishonoured, would