The main legal point established is that the discretion of the Magistrate under Section 256 CrPC must be exercised judiciously and fairly, considering the necessity of the complainant's presence and the stage of the case.

Vivek Singh Thakur, J.

This appeal has been preferred against impugned order, dated 27th June, 2017, passed by learned Judicial Magistrate 1st Class, Manali (hereinafter referred to as “Magistrate”) in Criminal Case No. 13I/2012/35III/2012, whereby the complaint filed by appellant-Dole Raj Thakur against respondent-Pankaj Prashar under Section 138 of the Negotiable Instruments Act (hereinafter referred to as “NI Act”), came to be dismissed in default for non-presence and non-prosecution, when the case was listed for arguments.

2. It is apt to reproduce the impugned order herein:

“27.06.2017

Present: None for complainant. Sh. Bhanu Pratap, ld. Adv. for accused.

On separate application, accused exempted through counsel for today only.

2. Be awaited. Be called after respite.

Sd/-

Judicial Magistrate 1st Class

Manali Distt. Kullu (H.P.)

Taken up again after respite

Present: None for complainant.

Sh. Bhanu Pratap, ld. Adv. for accused.

3. Be called after lunch.

Sd/-

Judicial Magistrate 1st Class

Manali Distt. Kullu (H.P.)

Taken up again after lunch

Present: None for complainant.

Sh. Bhanu Pratap, ld. Adv. for accused.

4. Be called after respite.

Sd/-

Judicial Magistrate 1st Class

Manali Distt. Kullu (H.P.)

Taken up again after respite

Present: None for complainant.

Sh. Bhanu Pratap, ld. Adv. for accused.

5. Case called repeatedly after intervals during the whole day. None has appeared on behalf of the complainant. It is 3:30 pm already and the cause list of the day stands exhausted. In the entirety of the facts and circumstances of the case, to my mind, without presence of the complainant this case cannot be proceeded further at the stage and presence of the complainant is indispensable and the complainant has not been appearing. Hence, the instant complaint is hereby dismissed in default for non-presence and non-prosecution. File after due completion be consigned to the records.

Announced.

Sd/-

Judicial Magistrate 1st Class

Manali Distt. Kullu (H.P.)”

3. In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure (hereinafter referred to as “CrPC”) is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 CrPC deals with a situation of nonappearance of death of complainant.

4. In the judgment passed by Allahabad High Court in case titled as Vinay Kumar versus State of U.P. & Anr., reported in 2007 CrLJ 3161, and another judgment passed by coordinate Bench of this Court in case titled as N.K. Sharma versus M/s Accord Plantations Pvt. Ltd. & another, reported in 2008 (2) Latest HLJ 1249, Section 256 CrPC has been held to be applicable in a complaint filed under Section 138 of the NI Act.

5. I deem it proepr to reproduce Section 256 CrPC herein:

“256. Nonappearance 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 subsection (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death.”

6. Section 256 CrPC provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainant from his pe