Judicial discretion in case dismissal must be exercised judiciously, especially regarding the necessity of a complainant's presence.

1. This appeal is directed against the impugned order dated 10.12.2010 passed by learned Judicial Magistrate First Class, Kota dismissing the Criminal Case No. 558 of 2010 for want of prosecution as a result of which respondents have been acquitted.

2. Brief facts of the case are that on 07.09.2010 a complaint case was filed by the appellant / complainant under S.138 of the Negotiable Instruments Act alleging in it that a cheque for Rs. 1,85,000 issued by the respondents has been dishonoured and therefore they have committed an offence. The said case was duly registered by the Court on 15.09.2010 and notices were directed to be issued to the respondents. The respondent No. 1 Suryabhan Singh appeared before the Court below on 20.10.2010 and was granted bail by the Court below. On 22.11.2010 the Court again issued notices to respondent No. 2 Manna Lal Yadav and the next date was given as 10.12.2010. On 10.12.2010 at 12.45 p. m. the case was taken up by the Court and on the said date the appellant, his counsel and respondent No. 2, Manna Lal Yadav were absent but respondent No. 1 Suryabhan Singh was the only person who was present in the Court. The learned trial Judge has dismissed the case for non - prosecution under S.256 of the Cr. P. C. and has acquitted the respondents. Hence, the present appeal.

3. Contention of Shri Agrawal, learned counsel appearing for the appellant is that on 10.12.2010, the case was listed for the presence of respondent No. 2 Manna Lal Yadav and even if the appellant and his counsel were not present the Court below ought not to have dismissed the case under S.256 of the Code of Criminal Procedure . It has been argued that the Court below has taken a very harsh view while dismissing the complaint case itself and therefore the impugned order may be set aside and the matter may be remanded back to the Court below.

4. On the other hand opposing the arguments of Shri Agrawal it has been argued by Shri Kaiwartya, learned counsel appearing for the respondents that as the appellant failed to appear before the Court below, the Court below was left with no other option but to dismiss the case under S.256 of Cr. P. C. and the said provision permits the Court to pass such an order.

5. Heard counsel for the parties and perused the record.

6. The complaint filed under S.138 of the Negotiable Instruments Act is triable under Chapter XX as a trial of summons cases by Magistrate. The procedure required to be followed in case of non - appearance of complainant or death of complainant, has been provided under S.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."
A bare reading of the above provision makes it clear that the power vested in the Magistrate in this section is discretionary. Accordingly, either he may dismiss the complaint or adjourn the case. However, it is a settled legal position that this discreti