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Serial No. 23

Reg Cause List.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

CrlM(646/2025) IN

CrlA(AS) 17/2025.

MOHAMMAD LATEEF SALMAN(SENIOR CITIZEN).

…Appellant (s)

Through: Mr. Badrul Duja, Advocate.

VERSUS

SURJEET SINGH.

Through: Mr. Rabinder Singh, Advocate.

…Respondent(s)

CORAM:

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

ORDER

24-12-2025

CrlM No. 646/2025

01. This is an application filed by the applicant/appellant seeking leave

to file the appeal against Order dated 17^th of March, 2025, passed by the learned

Trial Magistrate.

02. For the reasons stated in the application, the same is allowed and

the applicant/appellant is permitted to filed the appeal against Order dated 17^th of

March, 2025 passed by the Trial Magistrate.

03. The application stands disposed of.

CrlA (AS) No. 17/2025

01. Heard learned counsel for the parties and perused record of the trial

court.

02. In the appeal, it has been submitted that on the date on which the

impugned order dismissing the complaint of the complainant filed under

CrlA (AS) 17/2025 Page 1 of 4

Section 138 of the Negotiable Instruments Act was passed, the counsel

appearing for the complainant had to travel to Delhi on account of a medical

exigency and, therefore, could not appear before the learned trial Court. In order

to substantiate this assertion, the appellant has placed on record copies of the air

tickets of his counsel along with the relevant medical record.

03. Section 256 of the Code of Criminal Procedure (Cr.PC) provides

the procedure to be adopted by the Magistrate in the event of non-appearance or

death of the complainant. It reads as under:-

256. Non-appearance or death of complainant.(1) If

thesummons 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

04. A plaint reading of the aforesaid provision reveals that if the

complainant does not appear, the Magistrate is empowered to acquit the accused,

unless, for reasons to be recordedhe thinks it proper to adjourn the hearing of the

case to another date. Proviso to sub-section (1) lays down that if the complainant

is represented by a pleader or by the officer conducting the prosecution, or

where the Magistrate is of the opinion that the personal attendance of the

complainant is not necessary, the Magistrate has the discretion to dispense with

such attendance and proceed with the case. Thus, there are three eventualities in

CrlA (AS) 17/2025 Page 2 of 4

which the learned Trial Magistrate has the discretion to dispense with the

personal appearance of the complainant. One, if the complainant is represented

by his counsel two if he is represented by the officer conducting the prosecution

and third eventuality is if the personal attendance of the complainant is not

necessary.

05. Coming to the facts of the present case, a perusal of the trial court

record reveals that cognizance of the offence was taken and process was issued

against the respondent-accused vide order dated 07.12.2023, and the matter was

adjourned to 10.02.2024. Thereafter, the matter was adjourned on a couple of

dates and, on 16.07.2024, the accused entered appearance before the learned

Trial Magistrate. He furnished personal and surety bonds to the satisfaction of

the learned Trial Magistrate, and the matter was adjourned to 05.09.2024 for

recording t