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G. S. AHLUWALIA
Anuradha Agrawal – Appellant
Versus
Mahehdra Gupta – Respondent
JUDGMENT
1. This application under Section 378 (4) of Cr.P.C. has been filed against the order dated 4/5/2016 passed by the JMFC, Gwalior in case No.4189/2013, by which the complaint filed by the applicant under Section 138 of the Negotiable Instruments Act was dismissed for want of prosecution.
2. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that the Court below failed to see that the complainant had appeared before the Trial Court on earlier occasion, but her evidence was not recorded and under these circumstances, if she could not appear on 4/5/2016, then the Court below should not have dismissed the complaint for want of prosecution. It is further submitted that in case if the complaint is restored to its original file, then the complainant shall appear on the first date which shall be fixed for recording of her evidence.
3. Heard learned counsel for the applicant.
4. The applicant has filed copies of the order-sheets of the Trial Court, according to which, by order dated 15/4/2014 the substance of accusation was read over to the respondent. On 16/5/2014 the applicant filed her affidavit under Section 145 of Negotiable Instrument
The Court emphasized that a complaint should not be dismissed for want of prosecution if the party has made genuine efforts to appear before the Court, and that the Court should consider alternative ....
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.
Section 256 CrPC provides discretion to Magistrate either to acquit accused or to adjourn case for some other day, if he thinks it proper.
A litigant ought not to suffer because of the mistake of the Counsel, and a reasonable explanation for absence can warrant an opportunity for consideration of the complaint on merits.
Straightway dismissal of Section 138 complaint on single non-appearance unjustified; courts must exercise Section 256 Cr.P.C. discretion judicially, adjourning or dispensing attendance to ensure just....
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