A trial court must provide reasons for dismissing a complaint due to the complainant's absence, exercising discretion under Section 256 of the Cr.P.C. to avoid unjust hardship to the accused.

JUDGMENT

Mohd. Faiz Alam Khan, J.

Heard Shri. Udai Bhan Pandey, learned counsel for the appellant/complainant, Shri. Ashid Ali, learned counsel appearing for the respondent no.2 as well as Shri. Rajesh Kumar Singh, learned A.G.A. for the State and perused the record.

2. The instant appeal has been preferred by the appellant/complainant- Mohit Pandey against the order dated 25.11.2016 passed by Additional Judge, Court No.5, Lucknow in Complaint Case No. 3453 of 2008 (Mohit Pandey v. Shikha Banerji), under Section 138 of the Negotiable Instrument Act, Police Station Hazratganj, District Lucknow, whereby the complaint filed by the appellant was dismissed in default of the complainant.

3. Learned counsel for the appellant/complainant while drawing the attention of this Court towards the impugned order dated 25.11.2016, vehemently submits that the impugned order has been passed in utter disregard to the eventuality dealt with under Section 256 of the Cr.P.C. and no reasons has been given in the impugned order as to why the presence of the complainant was required for the further progress of the case and by passing a cryptic order, the complaint of the complainant/appellant has been dismissed.

4. While drawing the attention of this Court towards Section 256 of the Cr.P.C., it is vehemently submitted that mere non-presence of the complainant would not ipso facto be sufficient for dismissal of the complaint, as its satisfaction is required to be recorded by the trial court that due to the non-appearance of the complainant without any sufficient reason, the accused is being subjected to hardship and it is only on this score, the complaint may be dismissed under Section 256 of the Cr.P.C.

5. It is also submitted that the proviso of Section 256 of the Cr.P.C clearly provides that, the discretion lies with the presiding officer of the trial court to exempt the personal appearance of the complainant, which has not been dealt with in the impugned order.

6. Reliance in this regard has been placed by learned counsel for the appellant on the law laid down by this Court in 'Pramod Tyagi v. State of U.P.' reported in [(2019) 109 ACC 823].

7. Learned A.G.A. on the other hand supported the impugned order while Shri. Ashid Ali, learned counsel appearing for the accused/respondent no.2 vehemently opposes the submissions made by learned counsel for the appellant/complainant on the ground that for the last many dates the complainant was not appearing before the Court while the respondent no.2/accused was personally present and having regard to this eventuality, as it was evident that the complainant is dragging the case without any just excuse, the trial court has passed a justified order and no interference is required therein.

8. Having heard learned counsel for the parties and having perused the record, it is evident that on 25.11.2016 the complaint filed by the appellant-Mohit Pandey under section 138 of the N.I. Act, the trial court has dismissed the same in default of the complainant. However, no provision has been mentioned in the order, under which the complaint has been dismissed.

9. Chapter XX of the Code of Criminal Procedure provides procedure for the trial court of summons cases by the Magistrate.

10. Section 256 of the Cr.P.C. takes care of an eventuality where the complainant is not appearing or has died.

11. For ready reference, Section 256 of the Cr.P.C. is produced herein-below in verbatim:-

256. Non-appearance or death of complainant.-

"(1) 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 hereinbefore 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