Non-appearance of the complainant or their counsel does not automatically lead to the acquittal of the accused. The cause shown by the complainant for their absence should be considered valid grounds for setting aside the impugned order and restoring the complaint.

Ajay Mohan Goel, J.

This appeal has been filed by the petitioner against the order of learned Judicial Magistrate 1st Class, Court No. IV, Hamirpur, H.P. in case titled as Hi-Tech Satluj Motors Pvt. Ltd., Vs. North Star Cable Q Data com Pvt. Ltd., dated 07.04.2018 vide which the complaint filed by present appellant was dismissed by learned Court below on the ground that neither anyone had put in appearance on behalf of the complainant nor steps for summoning the accused were taken. Learned Court below also discharged the accused for the commission of offence punishable under Section 138 of the Negotiable of Instruments Act (in short 'the Act').

2. Despite service of the respondent no one has appeared on its behalf.

3. Learned counsel for the appellant has argued that the impugned order is not sustainable in the eyes of law as the learned Court below has erred in not appreciating that non-appearance of learned counsel for the complainant before learned Court below was a bonafide mistake, as the date fixed before learned trial Court was wrongly noted by learned counsel as 7.5.2018' instead of 7.4.2018'. Learned counsel has further argued that the impugned order is further not sustainable in the eyes of law, as learned Magistrate has wrongly come to the conclusion that complaint was fit to be dismissed as per the mandate of Section 256 of the Criminal Procedure Code.

4. I have heard learned counsel for the appellant and have also gone through the record of the case.

5. Section 256 of the Code of Criminal Procedure deals with non-appearance or death of complainant. This Section, inter alia, provides that if summons have been issued on complainant on a day appointed for appearance of accused or any day subsequent thereto for which hearing may be adjourned, in case complainant does not appears, the Magistrate shall acquit the accused unless for some reason, he thinks it appropriate to adjourn the hearing of the case to some other day. Thus, it is not as if on account of non-appearance of the complainant in every case accused has to be acquitted. Learned Court has the statutory mandate to adjourn the hearing of the case to some other date by recording reason.

6. In the present case on the day when the impugned order was passed, complainant was not present in the Court nor his counsel appeared before the Court. The reason for this, as it finds mention in the present petition, is that counsel for the petitioner wrongly noted down the date as 7.5.2018' instead of 7.4.2018'. The fact that petitioner has assailed the order of acquittal of the accused on account of non-appearance of the petitioner before this Court, demonstrates that the petitioner is serious about pursuing the complaint filed by him. This Court has no reason to disbelieve his version as why he could not appear before the Court on 7.4.2018.

7. Even otherwise, in cases such like this, in my considered view, learned Court below rather than hastily discharging/acquitting the accused on account of non-appearance of the complainant or his counsel on a solitary date should adjourn the hearing to some other day after recording reason and if even thereafter, either the complainant or his counsel does not appears then appropriate orders can be passed by the Court.

8. Hon’ble Supreme Court of India in Mohd. Azeem Vs. A. Venkatesh and another, (2002) 7 SCC 726 has deprecated the practice of acquitting the accused only for absence of complainant on one day and refusing to restore the complaint when sufficient cause for absence was shown by the complainant. In the said case also the complaint filed was under Section 138 of the Negotiable Instruments Act and the reason as to why the complainant could not appear before the Court below was on account of wrong date being noted. Hon'ble Supreme Court held that if the cause shown by the complainant has not been disbelieved then the same should have been held to be a valid ground for restoration of the complaint.

9. Coming to the facts of th