The main legal point established in the judgment is the interpretation of Section 256 of the Code of Criminal Procedure, emphasizing the necessity of the complainant's presence based on the specific purpose of the hearing and the importance of assigning a purpose for fixing dates.

JUDGMENT :

Ravindra Maithani, J.

Challenge in this appeal is made to the order dated 04.09.2021, passed in Complaint Case No. 3882 of 2016, Gulam Sabir vs. Ashraf Ali, passed by the court of 4th Additional Chief Judicial Magistrate, Dehradun. By the impugned order, a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”) has been dismissed under Section 256 of the Code of Criminal Procedure, 1973 (for short, “the Code”). Consequently, the respondent no.2, Ashraf Ali has been acquitted.

2. Heard learned counsel for the parties and perused the record.

3. In order to appreciate the controversy, the facts briefly stated are as follows. A complaint under Section 138 of the Act was filed by the petitioner on 22.09.2016. Cognizance was taken and the proceeding of the case initiated. The complainant was finally examined as PW1 on 09.06.2019. On 01.07.2019, the respondent no.2 moved an application for obtaining Handwriting Expert. It was allowed on 24.07.2019. On 01.11.2019, the ordersheet of the case records that the Handwriting Expert Report had already been received. Thereafter, on two dates namely, on 07.01.2020 and 22.02.2020, the case was adjourned at the instance of the petitioner and the case was fixed for hearing. The purpose, as such was not specified on those dates. On 20.08.2021, again none appeared for the parties, the matter was adjourned but, the purpose for which it was adjourned has not been spelled out in that order dated 20.08.2021. Subsequent thereto, on 26.08.2021, again parties did not appear and the case proceeded without revealing any purpose for which it was adjourned. On further two dates i.e. on 31.08.2021 and 02.09.2021, the petitioner did not appear and the case was again adjourned. Finally on 04.09.2021, the court dismissed the complaint under Section 256 of the Code.

4. Learned counsel for the petitioner would submit that on the date when the complaint was dismissed, the personal presence of the petitioner was not at all required for further proceeding of the case. A Handwriting Report had already been received. The petitioner had already been examined, the case could have proceeded further.

5. On the other hand, learned counsel appearing for the private respondent would submit that the petitioner committed default in appearing in the case on multiple occasions. The court had cautioned the petitioner to take steps in the case, which he failed to do, therefore, the court had no option but, to dismiss the complaint.

6. The complaint has been dismissed under Section 256 of the Code. It is as hereunder:-

“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 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 the complainant is due to his death.”

7. A bare reading of this Section makes it specifically clear that in the matters, where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he may dispensed with the attendance and to proceed with the case. This provision has come up for interpretation before the Hon’ble Supreme Court on various occasions. In the case of S. Anand vs. Vasumathi Chandrasekar, (2008)4 SCC 67, the Hon’ble Supreme Court observed as hereunder:-

“12. Section 256 of the Code provides for dis