The preference for substantial criminal justice over technical justice of default orders.

K.C. Sharma, J.-Heard learned Counsel for the parties. On 110.2000 the case was fixed for recording the statement of complainant. But since on 110.2000 neither the complainant nor his Counsel was present in the Court, the trial Court dismissed the complaint and acquitted the accused respondent.

2. The complainant appellant then moved an application for recalling the order dated 110.2000 on the grounds mentioned therein. But the application for restoration was also dismissed by the trial Court vide its order dated 30.1.2003.

3. Learned Counsel appearing for the appellant has strenuously contended that after substance of the offence was read over to the accused respondent, the case was posted to 14.1999 for recording the complainants evidence. But it was adjourned to 15.1999. It was again adjourned to 26.1999. According to the learned Counsel, on all these dates the complainant and his Counsel were present before the trial Court. The appellant complainant offered explanation for his non-appearance that under `Operation Pink the Government was demolishing Baramdas and in the process his shop was also damaged and that he lost his mental balance. Learned Counsel argued that Section 256, CrPC of -course affords protection to an accused against unnecessary harassment, but that does not empowers the trial Court to dismiss the complaint and acquit the accused in invitum. In support of his argument learned Counsel has relied upon a decision of the Apex Court in Associated Cement Co. Ltd. vs. Keshvanand, 1998 (1) SCC 687, and that of Andhra Pradesh High Court in Ampolu Apparao vs. Public Prosecutor, 2004 (I) BC 348.

4. Per contra, learned Counsel for the accused respondent has supported the reasonings given in the impugned order and contended that in the absence of the complainant and his witnesses on the date fixed for the complainants evidence, the trial Court could not have progressed the case any further and, therefore, the trial Court did not find it justifiable to adjourned the case and was justified in acquitting the accused respondent in view of the provisions of Section 256 CrPC. In support of his argument, learned Counsel has relied upon a decision of this Court in Laxmi Steel Industries vs. State & Anr., 2004 (2) Raj 1605.

5. I have given my thoughtful consideration to the rival submissions and have gone through the case laws cited at the Bar. The case relied upon by the Counsel for accused respondent turns to its own facts, inasmuch as, in the case relied upon by the Counsel for the respondent the facts are entirely different with that of the facts involved in the instant case. In Laxmi Industries (Supra), this Court after considering the provisions of Section 256, CrPC held as under:

".. . . . . Whereas, in the instant case, from the various order sheets, as noticed above, it has been

established that the complainant has not been appearing before the trial Court and the trial Court granted

numerous adjournments to the complainants Counsel for producing complainants evidence. In the

circumstances, therefore, in my considered view, the trial Court was justified in acquitting the

accused/second respondent. In this view of the matter, it is not a fit case to grant leave to appeal to this

Court. The applications seeking leave to appeal to this Court are, therefore, rejected."

6. Here in the instant case, it is important to note that for the first time the trial Court fixed the case for recording the complainants evidence on 14.1999. On 14.1999 the case was adjourned to 15.1999. It was further adjourned for one month and the date 26.1999 was fixed. Lastly, on 27.2000 the case was adjourned to 110.2000. On all these dates except on 110.2000 the complainant and his Counsel were present in the Court and the trial Court did not proceed in the matter and adjourned the case on the dates mentioned above without assigning any reason. Curiously enough, only on 110.2000 when the complainant and his Counsel remained absent, the tria