Judicial discretion must be exercised in dismissing complaints for non-appearance, as personal attendance is not always required.

JUDGMENT

1. The present cri. Appeal under Section 378(4) of the Criminal Procedure Code, 1973 has been preferred by the appellantcomplainant against the orders dated 31.1.2015 and 17.5.2016 passed by the learned Addl. Chief Metropolitan Magistrate (Economic Offences), Jodhpur Metropolitan, Jodhpur in Cr. Case (Complaint) No.964/2010 arising out of complaint for the offence under Section 138 of the Negotiable Instruments Act, whereby the accused-respondent No.2 herein has been acquitted from the charge of offence under Section 138 of the NI Act.

2. Briefly stated, the facts of the case are that the present appellant filed a complaint under Section 138 of the NI Act against the respondent No.2 herein for dishonour of cheque bearing no.565251 dated 26.2.2006 of ICICI Bank amounting to Rs.1,00,000/-. Thereafter, the learned trial court issued summons to the respondent No.2 vide order dated 17.11.2006, but he did not appear before the learned trial court. Ultimately, bailable warrants were issued against the accused, but the same could not be served for 6 years and on the request of the appellant, the trial court initiated proceedings under Sections 82 and 83 Cr.P.C against the accused vide order dated 22.8.2012. However, on 31.1.2015, the learned trial court dismissed the complaint of the appellant for want of prosecution and the accused was acquitted by taking aid of Section 256 of Cr.P.C.

3. Learned counsel appearing for the appellant submits that non-appearance on the part of the appellant on the relevant date was on account of miscommunication between the appellant and his counsel and the matter was pending consideration before the learned trial court from last 9 years on account of deliberate avoidance of appearance of the accused. It is submitted that if the orders impugned are allowed to stand then there would be great injustice to the appellant as it is the accused who is deliberately avoiding service of summons and if he gets the benefit of acquittal because of an inadvertent mistake on the part of the appellant, it would result in failure of justice because it is one of the cardinal principles of law that personal attendance of the complainant is not necessary on each and every date of hearing of the complaint and therefore, it is prayed that the present appeal may be allowed and the impugned orders may be quashed and set aside. In support of his contentions, the learned counsel relied upon the judgment of this Court delivered in the case of Sushil Kumar Damani Vs. M/s. Sheveta Construction Pvt. Ltd. & Ors reported in 2013(3) RLW 2104 (Raj.).

4. I have considered the contentions made by the learned counsel for the appellant and perused the impugned orders and also the record.

5. From the dates of events available on record it is clear that the accused-respondent No. 2 was avoiding appearance before the learned trial court and on some occasions, the counsel for the appellant-complainant was not present. This Court in Sushil Kumar Damani (supra) held as under:

'16. In the same manner, Co-ordinate Bench of this Court in Joharilal Vs. Ramjilal (supra), also held that the power of court under Section 256 of the Code should be judicially exercised. If the appearance of complainant is not necessary or material on that particular day, the case should not be dismissed. Dealing with the provision of Section 247 of the Code (old Cr.P.C.) equivalent to Sec.256 of the Code, it was held by this Court that Section 247 is not intended to serve as a short-cut for the trial courts to dismiss cases by snap judgments. The power to dismiss the case is, undoubtedly there, when the complainant in a case instituted on a complaint is absent in a summons case, but that power must be judicially exercised. In Joharilal Vs. Ramjilal (supra) also, it was held that in this class of cases, whenever a complainant is absent the Legislature has cast a duty on the Magistrate to consider and apply his mind to the question, whether the personal attendance of the c