The importance of the complainant's personal attendance for the progress of the case and the discretion of the Magistrate to adjourn the hearing or dismiss the complaint.

ORDER

1. This appeal is finally heard at motion stage.

2. This appeal is filed under Section 378 (4) of Cr.P.C. against the order dated 04.05.2018 whereby complaint case No. 29825/2006 (Vivek Choudhary Vs. Narendra Rai) under Section 138 of Negotiable Instrument Act (hereinafter referred to as N.I. Act) has been dismissed in the absence of complainant.

3. Learned counsel for the appellant has submitted that appellant filed a complaint under Section 138 of N.I. Act before the learned JMFC on 01.11.2006. Complainant could not appear before the trial Court on 04.05.2018, in his absent learned trial Court dismissed the complaint case under Section 256 of Cr.P.C. and acquitted the respondent/accused. He further submitted that learned Magistrate has not taken into note that on 12.04.2018, respondent/accused had paid cheque amount of Rs. 50,000/- to the appellant/complainant. There was a possibility of compromise between the parties due to which complainant did not appear in the Court on 04.05.2018. Learned JMFC has dismissed the complaint case without assigning proper reasons. Complainant was pursuing complaint case for the last 12 years for getting his money back from the respondent/accused. Though he got his money of Rs.50,000/- back but he still has to take remaining amount back from the respondent/accused. On account of compromise between the parties, appellant/complainant had not appeared before the trial Court on 04.05.2018. In such fact situation learned JMFC, Jabalpur instead of dismissing the complaint was required to adjourn the same. Impugned order is bad in law. Thus, it has been prayed that order of dismissal of complaint dated 04.05.2018 being erroneous and against the very concept of provision of Section 256 of Cr.P.C. be set aside.

4. It is not in dispute that trial Court has dismissed the private complaint in the absence of the complainant having filed under Section 138 of N.I. Act and acquitted the respondent/accused. The case of the appellant, in nutshell is that he filed a complaint under Section 138 of the N.I. Act which was registered and fixed for cross-examination of complainant but on 04.05.2018 complainant could not appear in the Court, in the absence of complainant, his complaint was dismissed and respondent/accused was acquitted. It is not in dispute that on 04.05.2018, when the complaint case was listed for cross-examination of complainant, he was not present in the Court and in the absence of complainant, learned trial Court dismissed his complaint case and acquitted the respondent/accused. No doubt, the complaint filed under Section 138 of N.I. Act is triable under Chapter XX as a trial of summon cases by Magistrate. The procedure which is to be followed in a case of non-appearance of complainant or death of the complainant, has been provided under Section 256 of the Code, which reads as under:-

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.

5. This Section applies to summons cases only. If the summons has been issued on the complaint and on the date of hearing if the complainant does not appear the Magistrate shall acquit the accused unless for some reason he thinks it proper to adjour