IMPORTANT POINT -
Negotiable Instruments Act & Criminal Procedure Code, Section 256 - Non-appearance or death of complainant - Dismissal in default - Exercise of power - Held, that this Section imposes two constraints on the court for the exercise of powers for dismissing a complaint - Firstly, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused - Secondly, when the Magistrate considers that the personal attendance of the complainant is not necessary on that day – He has the power to dispense with the personal attendance of the complainant and proceed further with the matter. (Para 9)

(Surinder Singh, J.) (Oral) - The appellant was a complainant in complaint No. 120-3 of 2007, filed under Section 138 of the Negotiable Instruments Act in short ‘the Act’ against the respondent.

2. The complaint was dismissed in default vide order dated 25.7.2007 by the Judicial Magistrate, Court No. (3), Shimla, which has an effect of acquittal.

3. Against dismissal of her complaint, the appellant herein preferred a revision petition in the court of Sessions, which was withdrawn on 6.6.2008, perhaps realizing that the revision was not competent and the order was appealable. As such, the present appeal has been filed, assailing the order of dismissal in default, which was barred by limitation, however, vide order dated 26.2.2009, the delay was condoned.

4. I have heard the learned Counsel for the parties and have examined the record.

5. As a matter of fact, the appellant had filed a complaint before the learned trial Court on 30.3.2007.

6. The preliminary evidence by affidavits was led before the learned trial Court on 10.5.2007, on considering the complaint, the documents appended thereto and also the affidavits filed in support of the complaint, the learned trial Court found reasonable grounds to summon the respondent as an accused, under Section 138 of the Act, which is summons case, as such, he was ordered to be summoned for 28.6.2007. The summons were not received back on that day as indicated in the column of zimini order, but this fact was not recorded in the zimini order, passed by the Judicial Magistrate below, but however, he ordered to summon the accused-respondent for 25.7.2007, on filing of the process fee within three days.

7. The matter was adjourned for 25.7.2007, but on that day neither the complainant nor her counsel was present, as such, the learned Judicial Magistrate, Ist Class, Court No. 3, Shimla passed the following order :

“25.7.2007 Present : None.

It is 4.05 P.M. Case called thrice nobody appeared on behalf of complainant. Hence this present complaint is hereby dismissed for non-prosecution. File after completion be consigned to the record room.

Sd/-

(J.L. Azad)

Announced. Judicial Magistrate

25-7-07 Ist Class (3) Shimla.”

8. In this appeal, the appellant has tried to explain her absence on the day aforesaid when it was dismissed in default, which may not be very much relevant here, but however, the order of dismissal of the complaint aforesaid is quite indefensible. The learned trial Magistrate appears to have not applied his mind to the provisions of Section 256 of the Code of Criminal Procedure, hereinafter to be referred as “the Code”, which reads as under :-

“256. Non-appearance or death of complainant. - (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.” (Emphasis supplied)

9. In N.K. Sharma v. M/s. Accord Plantations Pvt. Ltd. and another, Latest HLJ 2008 (H.P.) 1249, this court was confronted with the similar proposition. However, following the judgment of the Apex Court in Associated Cement Co. Limited v. Keshvanand, 1998(1) Supreme Court Cases 687, noticed that the section aforesaid imposes two constraints on the Court for the exercise of powers for dismissing the complain