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DEEPAK GUPTA
Rajesh Jain – Appellant
Versus
Ajay Singh – Respondent
Key Points: - The dismissal for want of prosecution should be assessed under Section 256 Cr.P.C., especially when the case has reached the defence evidence stage and the complainant’s presence may not be necessary (!) (!) . - In M/s. BLS Infrastructure Limited v. M/s. Rajwant Singh, the Supreme Court examined whether a Magistrate was justified in dismissing a complaint for non-appearance after the complainant’s evidence had been recorded and the matter was listed for defence evidence (!) (!) (!) . - The court held that dismissal was not justified and that where the case has reached the stage of defence evidence, the court should not automatically acquit; it may dispense with attendance if not necessary and proceed, and the appeal directed restoration of the complaint from the stage reached before dismissal (!) . - The present judgment allowed the appeal, set aside the impugned order, and directed the Trial Court to restore the complaint at its original number and proceed from the stage reached before dismissal (!) . - The appellant contended that failing to appear on 28.02.2023 due to other proceedings did not justify dismissal; the respondent admitted the date and context in which dismissal occurred (!) (!) . - The case involves Section 138 of the Negotiable Instruments Act and its interplay with Section 256 Cr.P.C. (!) (!) . - Leave to appeal was granted, and CRA-AS-425-2023 was conducted to challenge the 28.02.2023 dismissal (!) (!) . - The final order directs both parties to appear on 03.10.2023 to proceed from the stage reached (!) .
DEEPAK GUPTA, J.
Prayer in this appeal under Section 378(4) Cr.P.C. read with Sections 482 and 357(3) Cr.P.C. is for setting aside the order/judgment dated 28.02.2023 passed by learned Judicial Magistrate 1st Class, Jind, whereby complaint bearing CIS No. NACT/429/2018 titled as “Rajesh Jain v. Ajay Singh” under Section 138 of the Negotiable Instruments Act, 1881, was dismissed for want of prosecution.
Leave to appeal is granted.
Registry is directed to assign the number of appeal.
CRA-AS-425-2023
2. It is contended by the appellant, who is appearing in person that after being dragged for a period of 04 years, the complaint in question reached at the stage of defence evidence. The case was fixed on 28.02.2023 for recording the defence evidence but on that day, applicant-appellant was required to appear before Hon’ble Supreme Court in SLP No.12802 of 2022, instituted by the appellant against the same vary respondent, in respect of two other cheques, due to which the appellant could not appear before the Trial Court on 28.02.2023 and that without serving any notice to the appellant, the complaint was dismissed for want of prosecution.
3. The appellant contends that as the case had reached
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