The central legal point established in the judgment is the need for a judicial and fair exercise of discretion in dismissing complaints in default, as provided under Section 138 of the Negotiable Instrument Act, 1881.

H.R. Panwar, J.-By this criminal revision petition under Section 397 read with Section 401, CrPC, the petitioner has challenged the order dated 211.2003 passed by Additional Civil (Sr. Div.) and Judicial Magistrate No. 2, Jodhpur on a complaint being complaint case No. 82/2003 filed by the petitioner complaint under Section 138 of the Negotiable Instrument Act, 1881 (for short the Act) was dismissed in default.

2. I have heard learned Counsel for the petitioner and the Counsel for the respondent. Perused the order impugned and material placed on record.

3. Briefly stated facts relevant and necessary for decision of the revision petition are that a complaint was filed by the petitioner on 11.09.2001 against the non-petitioner for the offence under Section 138 of the Act. The statement of complainant was recorded and thereafter the trial Court took cognizance of the offence on 19.09.2001 and issued the process against non-petitioner. The non-petitioner appeared before the Court on 25.07.2002. The arguments on charges were heard by the trial Court on 210.2002. However, till 01.07.2003, the trial Court could not frame the charge and ultimately on 02.07.2003, the trial Court framed the charge and read over to the non-petitioner. The matter was posted for the evidence of the complainant on 04.09.2003. The non-petitioner did not appear and matter was adjourned to 011.2003. On 011.2003, none of the parties appeared and the matter was adjourned to 211.2003. On 211.2003, the petitioner complainant as also his counsel could not appear before the Court in early hour of the Court. The trial Court dismissed the complaint case in default. At about 12.05 in midday, the complainant and his Counsel appeared and filed an application before the trial Court stating the reasons of their non-appearance. It was stated that the complainant is a retired Scientist and on the relevant date, he was the Chief Guest of the Science Fair organized in a public school and after attending the function, he reached the Court. It was also stated that the Counsel representing the petitioner suddenly fell ill and consulted the Doctor and after receiving the treatment rushed up to the Court and on reaching the Court, it was noticed that the complaint filed by the petitioner had already been dismissed in default. An application seeking restoration of the complaint case was promptly filed on the very day. The trial Court refused to recall the order or restore the complaint on the ground that once the complaint has been dismissed, there is no provision to restore the same. From the affidavit filed by the Counsel appearing for the petitioner before the trial Court, it is more than clear that the Counsel appeared 12.10 midday before the trial Court but before appearance of the Counsel, the complaint already stood dismissed in default. The prescription slips of the Counsel were also filed before the trial Court.

4. Learned Counsel for the petitioner has relied on a decision of the Honble Supreme Court in Associated Cement Co. Ltd. vs. Keshvanand, AIR 1998 SC 596, wherein the Apex Court, while considering the provisions of Section 256 of the CrPC, held as under:-

"Two constraints are imposed on the Court for exercising the power under the 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 has the 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 t