The court emphasized that the absence of the respondent may not be necessary for adjudication, especially when the complainant had been pursuing the case diligently, and highlighted that the dismissal in default would not affect the proceedings initiated under Section 446 Cr.P.C.

JUDGMENT :

Vivek Singh Thakur, J.

1. This revision petition, arising out of dismissal in default of complaint filed under Section 138 of Negotiable Instrument Act, has been preferred by complainant on the ground that the day on which case has been dismissed in default was fixed for service of respondent/ accused through Non-bailable warrants, however, neither counsel nor complainant could appear on that day due to noting down the wrong date by the counsel, engaged by complainant.

2. Notice issued to the respondent was received un-served. However, on the last date of hearing, learned counsel for the petitioner/complainant had submitted that complaint has been dismissed in absence of respondent when the case was fixed for service of respondent. However, the respondent was not present on that day and therefore, for adjudication of present petition wherein explanation with respect to absence of complainant or his counsel, before the trial Court on the day of passing of impugned order, is to be explained, presence of respondent/accused may not be necessary.

3. Without accepting or rejecting the plea of learned counsel for the petitioner, record of the trial Court was summoned for determining the issue whether service of respondent is necessary for adjudication of present petition or not.

4. Perusal of record indicates that on 26th September, 2018, respondent/accused was not present in the trial Court, despite having the knowledge of date of hearing as when the case was listed on 25.8.2018, for recording the evidence of complainant, though, respondent was not present, however, an exemption application filed on his behalf was allowed and in his absence, statement of one witness was recorded and thereafter the case was fixed for recording his statement under Section 313 Cr.P.C. on 26.9.2018. Because of his absence on 26.9.2018, Non- bailable warrants were issued against the respondent/accused for 29th October, 2018. In record, nothing is mentioned with respect to execution of Non-bailable warrants upon the respondent/accused, however, it has been recorded that case was called thrice but none was present for complainant. The order is silent about presence of respondent/accused or execution of Non-bailable warrants issued against him. Therefore, plea of petitioner is accepted that in the present case, presence of respondent is not necessary and therefore, it is being decided without insisting for service of respondent/ accused.

5. Petitioner has filed a complaint under Section 138 of Negotiable Instrument Act on 9.7.2014 before JMIC, Solan. It remained pending before the said Court till 4th August, 2016 and thereafter, it was transferred to the Court of Additional Chief Judicial Magistrate, Solan on 20.10.2016. It was again transferred back to JMIC, Court No. 1, Solan on 16.6.2017, where evidence of complainant/petitioner was recorded and case was pending for recording of evidence under Section 313 Cr.P.C. From the record, it is evident that either complainant or his counsel or both of them always remained present in Court on each and every date of hearing, except on 20.10.2016, 16.6.2017 and 16.9.2017 and also on 29.10.2018 when the impugned order was passed. 20th October, 2016 and 16th June, 2017 are the dates when the case was received in the Court of Additional Chief Judicial Magistrate, Solan and JMIC Court No. 1, Solan respectively after transfer of same. Before 20.10.2016 the case was listed on 4.8.2016 and on that day, it was fixed for recording the statement of witnesses on 19.11.2016. Similarly before 16.6.2017, case was listed on 23.2.2017 on which date it was ordered to be listed for recording the evidence of complainant witnesses on 19.4.2017. It is apparent that on 20.10.2016 and 16.6.2017 the case was neither fixed for presence of complainant not it was informed to him or his counsel about listing of case on that day, but dates informed to them were 19.11.2016 and 19.4.2017, therefore, this absence cannot be said to be willful