Straightway dismissal of Section 138 complaint on single non-appearance unjustified; courts must exercise Section 256 Cr.P.C. discretion judicially, adjourning or dispensing attendance to ensure justice.

JUDGMENT :

Sandeep Sharma, J.

Being aggrieved and dissatisfied with order dated 26.12.2024 passed by learned Chief Judicial Magistrate, Mandi, District Mandi, Himachal Pradesh, whereby Criminal Complaint No. 667 of 2023, titled as Manoj Kumar Pathania Vs. Nirmala Devi , came to be dismissed in default for want of prosecution, appellant- complainant has approached this Court in the instant proceedings filed under Section 419(4) of Bharatiya Nagrik Suraksha Sanhita, praying therein to set aside the aforesaid order and restore the complaint filed under Section 138 of the Negotiable Instruments Act.

2. Precisely, the grouse of the petitioner as highlighted in the petition and further canvassed by Sh. Loveneesh Singh Thakur, learned Counsel for the appellant/complainant (in short “appellant”), is that on account of unavoidable circumstances, appellant/complainant was unable to produce his evidence on the given date and learned trial Court proceeded to dismiss the complaint for want of prosecution. Mr. Loveneesh, submitted that appellant was pursuing his case diligently and was appearing regularly, but on 26.12.2024, appellant could not appear before learned trial Court as he was ill and was advised bed rest by the doctor, which information was given to the counsel, who also happened to be out of station due to some personal difficulty. Since on that day, none appeared on behalf of the complainant, Court concerned after adjourning the matter for some time, proceeded to dismiss the same for non-prosecution. In the aforesaid background, complainant has approached this Court in the instant proceedings, praying therein to set aside aforesaid order.

3. To the contrary, Mr. G.R. Palsra, learned counsel for the respondent/accused (in short “respondent”), vehemently argued that since complainant had not come present to pursue his complaint, no illegality can be said to have been committed by the learned trial Court, while passing impugned order. He submitted that in criminal proceedings complainant and accused, unless exempted are always under obligation to put in appearance on each and every date.

4. Having heard learned counsel for the parties and perused material adduced on record, this Court finds that on 26.12.2024, case was listed for appellant’s evidence but appellant failed to put in appearance, whereafter Court below after repeatedly calling out the case, dismissed the complaint for want of prosecution and acquitted the respondent for commission of offence punishable under Section 138 of Negotiable Instruments Act. No doubt, perusal of the Zimini orders placed on record reveal that on 26.12.2024, matter was called repeatedly, enabling complainant or his counsel to come present, but certainly Court ought not have straightway proceeded to dismiss the complaint for non-prosecution, rather in such like situation, Court could either issue notice to the complainant or his counsel, specifically calling upon them to come present in person. Interestingly, Court concerned in the impugned order has observed that non-presence of the complainant does not appear to be un-intentional and non-deliberate, but it is not understood how and on what basis aforesaid finding came to be returned by the Court concerned. Had complainant not put in appearance on previous dates, Court concerned was well within its right to conclude that complainant‘s absence on the given date is intentional and deliberate.

5. In terms of Section 143 of the Act, offence under Section