Appellant/complainant feeling aggrieved by the order of

the II Addl. Civil Judge and J.M.F.C, II, Dharwad, in

C.C.No.1746/2019 in dismissing the complaint for non-

prosecution by order dated 03.03.2022, preferred this appeal.

2.

Parties to the appeal are referred with their ranks as

assigned in the trial Court for the sake of convenience.

3.

Heard the arguments of learned counsel for

appellant.

4.

The records of the case would go to show that

complainant has filed private complaint under Section 200

Cr.P.C. for the offence punishable under Section 138 of the

Negotiable Instruments Act. The trial Court on being prima-

facie satisfied of the materials placed on record by complainant

vide order dated 19.12.2019 took cognizance of the offence

and ordered to issue summons to the accused returnable by

20.01.2020. Thereafter, counsel for complainant has taken

steps to serve the summons. The trial Court by order dated

12.02.2021 has observed that summons to accused is duly

served and remained absent. Hence, NBW came to be issued

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against accused. On some occasions, NBW issued against

accused was not executed. Thereafter, though the NBW was

ordered to be reissued, but PF was not paid. Therefore, the trial

Court by order dated 03.03.2022 having noted the absence of

complainant and his counsel and for not taking steps dismissed

the complaint as complainant is not interested in prosecuting

the case.

5.

On perusal of the order-sheet of the trial Court, it

would go to show that summons issued to the accused came to

be duly served and the trial Court having satisfied with the

proper service of notice by order dated 12.02.2021 ordered to

issue NBW against accused. Thereafter, the matter came to be

adjourned from time to time due to pandemic Covid-19 or for

other reasons. It is equally true that on some dates, the

complainant has not appeared and paid PF though NBW was

reissued by the trial Court. When the offence under Section 138

of N.I. Act is to be tried as summons case, then the procedure

contemplated in terms of Chapter XX of Criminal Procedure

Code from Sections 251 to 259 has to be followed. The

presence of complainant before trial Court on every occasion is

not required when he is duly represented through counsel.

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Under such circumstances, whether the absence of complainant

before the Court can be termed as a person not interested in

prosecuting the case.

6.

In this context of the matter, it is useful to refer to

the decision of Hon’ble Apex Court in ASSOCIATED CEMENT

COMPANY VS. KESHAVANAND reported in (1998) 1

Supreme Court Cases 687, wherein it has been held that the

proviso 256 of Cr.P.C, though affords some deterrence against

dilatory tactics on the part of the complainant, who set the law

into motion through his complaint, but at the same time, it

does not mean that if the complainant is absent, the Court has

duty to acquit the accused. It has been further held that

discretion under Section 256 of Cr.P.C. must be exercised

judicially

and

fairly

without

impairing

the

cause

of

administration of criminal justice.

7.

Looking to the proceedings recorded by the trial

Court in the order sheet, it would go to show that the

complainant who is duly represented through counsel has taken

necessary steps for service of summons as ordered by the

Court and the same is duly executed. However, on the same

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address the NBW issued against accused returned unexecuted

for one or the other reason. On few occasions, learned counsel

for complainant has not paid the P.F. When once the trial Court

found that summons is duly served to the accused on the same

address given in the complaint, then coercive steps has to be

taken to secure the presence of accused before Court. The

return of NBW unexecuted in spite of due service of summons

only demonstrates the fact that accused on one or the other

reason is evading process of law. Therefore, under these

circumstances, no any fault can be found with the complainant

and cannot be bra