In summons cases, the complainant's presence is not necessary on all dates of hearing, and the trial court should consider the circumstances leading to the non-appearance before discharging or acquitting the accused.

1. - From the perusal of the impugned order dated 4.5.1998, it is apparent that the trial court had dismissed the complaint for non appearance of the complainant though, the evidence led by the complainant as per Sections 200 & 202 Cr.PC. was complete and the process had been initiated to procure the presence of the accused after taking cognisance of the matter under Section 204, Cr.PC. on 4.5.1998 i.e. the date which was fixed for service of the accused, the complainant could not attend the court notwithstanding the fact that it was a summons case and the procedure as envisaged under the Code of Criminal Procedure, 1973 for dealing with the summons cases is different than that of warrant cases. In summons cases, it is not necessary that the complainant should be present on all dates of hearing whereas, in the instant case it is not a question of complainant being absent for the reason or any wilful default but, on the contrary the trial court should have taken note of this fact that since the process had already been initiated after taking cognisance against the accused as per Section 204, Cr.PC. it was the accused who presence was required and not the complainant who should have been present on the date i.e. 4.5.1998 when the complaint was dismissed.

2. Mr. R.K. Mathur, learned counsel for the complainant-appellant has filed the affidavit of Mr. V.K. Mathur, Advocate who was the counsel for the complainant-Pawan Mathur in this matter. He has stated in the affidavit that due to demise of his close relative, he has to immediately rush to Jodhpur on 1.5.1998 and reached back at Jaipur on 4.5.1998 by Intercity Train at about 11.30 PM. In my view, this by itself is sufficient ground for non- appearance of the complainant's counsel on the date of hearing i.e. 4.5.1998 when the impugned-order resulting in dismissal of the complaint was passed. As a matter of abundant caution, the learned trial court should not have discharged-acquitted the accused for the offence under Section 138 of the Negotiable Instruments Act.

3. As a result, the leave to appeal is allowed & disposed of. The impugned-order dated 4.5.1998 is quashed and set-aside. The complainant-appellant is directed to appear before the trial court on 22.3.99. The trial court is directed to expedite the further proceedings afresh.

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