Dismissal of a complaint under Section 138 of the NI Act for a single default in appearance is improper if the complainant's presence was not essential for the progress of the case on that specific date.

Digitally signed by PRIYANKA VERMA Date: 2 10 52 :26 3.0 :23 7.02

Judgment on Board

1. This is acquittal appeal filed under section 378 (4) of Cr.P.C. by the complainant/appellant against the order dated 07.08.2015 passed by the Judicial Magistrate First Class, Durg (C.G.), in Criminal Complaint Case No.467/2012, whereby the learned J.M.F.C. dismissed the complaint case filed under Section 138 of the Negotiable Instruments Act (for short, ‘the NI Act’) for want of prosecution.

2. Facts of the case, in brief, is that the appellant filed a complaint under Section 138 of the Negotiable Instruments Act on 25.05.2012 before the Judicial Magistrate First Class, Durg, alleging dishonour of Cheque No. 094315 dated 28.03.2012 for Rs. 1,53,000/-, issued by the respondent towards discharge of liability. The said cheque, when presented before Bank, was returned unpaid due to “Insufficient Funds.”

3. A statutory notice dated 25.04.2012 was duly served, but the respondent denied liability. Then the appellant filed a complaint before the competent Court. However, the complaint was dismissed for non-prosecution on 07.08.2015 by the trial Court. Hence, this appeal.

4. Learned counsel for the appellant submits that the impugned order passed by the trial Court is illegal and unsustainable in law. He further submits that in matters under Section 138 of the NI Act, the courts may adjourned the case and absence of Advocate of the complainant is not deliberate or intentional. He also submits that on the impugned date, i.e., 07.08.2015, the case was not fixed for hearing but only for further proceedings; therefore, the presence of the complainant was not necessary. On the aforesaid grounds, it is prayed that the impugned order deserves to be set aside and the complaint be restored for adjudication on merits.

5. Learned counsel for the respondent does not object the submission made by the learned counsel for the appellant.

6. Heard learned counsel for the parties and perused the material available on record.

7. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:-

“18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore be exercised judicially and fairly without impairing the cause of administration of criminal j