IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.549 of 2025 Date of Decision: 02.04.2026 __________________________________________________________________________

Sh. Rajesh Kumar ……...Appellant Versus Sh. Tej Ram …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judgef.

Whether approved for reporting?

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For the Appellant: Mr. Amtit Sharma and Mr. Varun Chauhan, Advorcates.

For the Respondent: Ms. Manjit Kaur, Advocate, vice Mr. Naveen Kumar Bhardwaj, Advocate.

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Sandeep Sh C arma, J. (Oral)

Being aggrieved and dissatisfied with order dated 04.08.2025 pashsed by learned Chief Judicial Magistrate, Kullu, District Kullu, gHimachal Pradesh, whereby complaint No.724/2017, titled Rajesh Kumar Vs. Tej Ram, came to be dismissed in default, appellant-complainant has approached this Court in the instant proceedings filed under Section 419 of the BNSS, 2023, praying therein to set aside the aforesaid order and restore the complaint filed under Section 138 of the Negotiable Instruments Act.

2. Learned counsel representing the appellant fairly states that on account of some unavoidable circumstances, appellant/complainant was unable to come present on the date of passing of the impugned order and he was under impression that his counsel will come present and seek further time, however, Court below, taking note of his absence as well as his counsel, dismissed the complaint for want of prosec.ution.

3. To the contrary, Ms. Manjit Kaur, learned counsel for the respondent-accused, supported the impugned order. She submitted that since complainant had not come poresent to pursue his complaint, no illegality can be said to have been committed by the Court below, while passing impugned order. She submitted that in criminal proceedings complainant and accusued, unless exempted, are always under obligation to put in appearanceo on each and every date.

4. Having heard learned counsel for the parties and perused material adduced on record, this Court finds that on 04.08.2025, case was listhed for defence evidence. No doubt, perusal of the zimni order placed on record reveals that on 04.08.2025, matter was adjourned twice, enabling complainant or his counsel to come present, but certainly trial Court ought not have straightway proceeded to dismiss the complaint in default, rather in such a situation, Court could either issue fresh notice to the complainant or its counsel, specifically calling upon him to come present or his counsel, or could have adjourned the matter.

5. At this stage, it would be apt to take note of Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which reads as under:-

“279. Non-appearance or death of complainant.

(1)If the summons has been issued on complaint,P and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, th.e complainant does not appear, the Magistrate shall, after giving thirty days' time to the complainant to be present, 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 an advocate 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 wohere the non-appearance of the complainant is due to his death.”

6. CAforesaid provision of law gives a discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he/she thinks it proper. Proviso to aforesaid Section further empowers the gMagistrate to exempt the complainant from his pe