The dismissal of a complaint for want of prosecution amounts to acquittal of the accused under Section 256 of the Code of Criminal Procedure, and the exercise of judicial discretion is crucial in such cases.

DEEPAK GUPTA, J.

Accused of the criminal complaint No.76 of 2012 titled as “Harpal Singh vs Parkash Singh” (Annexure P-1) pending in the Court of learned Judicial Magistrate 1st Class, Patiala, is in this revision against the order dated 15.12.2016 passes in criminal revision N: CRR 545 of 2016, whereby the said complaint dismissed in default by learned Magistrate, was allowed to be restored by the learned Additional Sessions Judge, Patiala.

2. Brief facts for disposal of the present revision are that complaint in question was filed on 01.06.2015 regarding the dishonour of the cheque dated 06.04.2015 for an amount of ?2,40,000/- issued by the accused in favour of the complainant. Said complaint was filed after making all the statutory compliances. After recording preliminary evidence, summoning order was passed on 22.07.2015. On 23.09.2015, the case was fixed for appearance of the accused, when nobody appeared for the complainant and so, the complaint was dismissed in default for want of prosecution. Application for restoration moved on the very next day i.e. 24.09.2015 was dismissed by the learned Magistrate on 23.12.2015, which led the complainant to file a revision. Said revision has been allowed by the learned Additional Sessions Judge, Patiala vide impugned order dated 15.12.2016, against which this revision is filed.

3. It is contended by learned counsel for the petitioner that dismissal of the complaint for want of prosecution, amounted to acquittal of the accused-petitioner as per Section 256 of the Code of Criminal Procedure, against which only the appeal could lie and therefore, the revision petition filed before the learned Additional Sessions Judge, Patiala, was not maintainable. Learned counsel has relied upon the judgment of the Hon'ble Supreme Court of India in case of “V.K. Bhat vs G. Ravi Kishore and another” reported as 2016(2) R.C.R.(Criminal) 793, wherein it has been held that when the complainant is not appearing in a complaint case under Section 138 of the Negotiable Instruments Act, 1881 and the complaint is dismissed in default, it amounts to acquittal of the accused under Section 256 of the Code of Criminal Procedure.

4. Notice of motion was issued to the respondent. However, there is no representation.

5. I have considered the submissions of learned counsel for the petitioner and have also perused the record.

6. Section 256 of the Code of Criminal Procedure reads as under:-

“256. Non-appearance or death of complainant - (I) 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 herein before 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 sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of complainant is due to his death.'

7. It is, thus, clear that in a summons case filed by the complainant, if on the date appointed for appearance of accused, complainant does not appear, then Magistrate has the power to acquit the accused unless for some reasons, he thinks it proper to adjourn the hearing.

8. In present case, on 23.09.2015, the case was fixed for appearance of the accused. As complainant had not appeared, so complaint was dismissed in default for want of prosecution. Said order amounts to acquittal of the accused in view of Section 256 Cr.P.C. as held in V.K. Bhat’s case (supra). A Full Bench of this High Court in M/s Tata Steel Limited Vs M/s Atma Tube Products Ltd. 2013 (2) RCR (Criminal) 1005