The court should not dismiss a complaint immediately in the absence of the complainant, especially in cases filed under Section 138 of the Negotiable Instruments Act. The court should consider adjourning the case and exercising judicial discretion before dismissing the complaint.

I.S. Shrivastava, J.

1. A private complaint was filed under Section 138 of the Negotiable Instrument Act (for short 'the Act') by the complainant Vijay Singh against the accused/Respondent Surendra Singh before the Trial Court for dishonour of cheque of Rs. 35,000/-. Case was registered at Criminal Case No. 1479/2005. In this case, statement of the complainant was recorded and the case was pending for remaining evidence of the complainant. On 26/05/2007, the complainant and his advocate could not appeared in the Court at the call of the case, while the Respondent accused along his advocate was present, the Court dismissed the complaint due to absence of the complainant and acquitted the Respondent/accused from the charges under Section 138 of the Act.

2. It has been argued on behalf of the Appellant that in this case, statement of the complainant was recorded and he was cross-examined by the Respondent and the case was fixed for remaining evidence of the complainant on 26/05/2007. On single default of appearance of the complainant and his advocate, the case was not liable to be dismissed, but the Court must have adjourned it for further date. Thus, the Court has committed error in dismissing the complaint of the complainant.

3. It has been argued on behalf of the Respondent that the case has rightly been dismissed as none appeared for the complainant and his evidence was not presented. Hence the appeal being baseless be dismissed.

4. Arguments considered.

5. In Mohd. Azeem v. A Venkatesh and Anr. reported in 2002 (7) SCC 726, it has been held that the Court adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint, when sufficient cause for absence was shown by the complainant.

6. In Right Services, Ratlam v. Chhotu Bhaiya Road Lines, Ratlam reported in 2003 (2) M.R.L.J. 523 it has been held that while dismissing the complaint in the absence of complainant, the Court should not pass the orders of dismissal of complaints and acquit the accused persons mechanically. The Court should consider the nature of the offence and the material produced by the complainant and also the stake which complainant is having in the matter. If on solitary hearing or hearings for one or the other reasons if the complainant is not present, normally the Court should adjourn the case and should not arbitrarily exercise its discretion refusing the exemption. Normally in complaint cases filed under Section 138 of the Negotiable Instruments Act when a complaint is filed, the complainant is having a stake in the matter. Therefore, in the absence of the complainant, the complaint should not be dismissed immediately. The Court should either adjourn the case or may proceed to hear the case under the proviso of Section 256 of the Code of Criminal Procedure and if the complainant is represented by an Advocate or by officer conducting the prosecution or if the personal attendance of the complainant is not necessary, the Court should either grant exemption, suo-motu or on the application of the advocate, as the order of dismissal of complaint operates as a final order. Therefore, normally it should be passed after proper application of mind and exercise of judicial discretion. Impugned orders, dismissing the complaints and acquitting the Respondent/accused are hereby set aside.

7. In the present case, the complaint was filed under Section of the Act for the dishonour of cheque of Rs. 35,000/- and the case was fixed for evidence on 26/05/2007, but on that date, on single default of appearance of the complainant and his advocate, the Court dismissed the complaint and discharged the accused/Respondent. The action taken by the Court was more harsh and strict. The case ought to have been adjourned for the evidence of the parties, the Court should not dismiss the complaint. The Appellant