Complaints under Section 138 of the Negotiable Instruments Act cannot be dismissed for non-appearance of the complainant if evidence is already on record, allowing the case to proceed.

JUDGEMENT

MANOJ MISRA, J.

1. Leave granted.

2. These appeals by way of special leave petitions are directed against the judgment and order dated 07.11.2019 passed by Delhi High Court dismissing Crl.L.P. Nos.315 to 322 of 2019 filed by the appellant against the order of Metropolitan Magistrate-04 (N.I. Act)/South East, Saket Courts, New Delhi (for short “learned Magistrate”) dated 25.01.2019 dismissing Criminal Complaints No.621744/16, 1718/16, 1276/16, 1277/16, 621743/16, 621742/16, 12742/17 and 12744/17 for non-appearance of the complainant (the appellant herein).

Digitally signed by Charanjeet Kaur Date: 2023.03.01 17:00:34 IST Reason:

Signature Not Verified

3. The short question that arises for our consideration in these appeals is whether in the facts of the case, the learned Magistrate was justified in dismissing the criminal complaints for non-appearance of the complainant even though the statement of the complainant had been recorded and, vide order of the learned Magistrate dated 26.10.2017, the complainant’s evidence was closed with a direction to list the matter for recording of defence evidence as also for consideration of application under Section 311 of the Code of Criminal Procedure, 1973 (for short “the Code”) filed by the complainant.

4. To appropriately address the aforesaid issue, it would be apposite to give a brief sketch of the facts giving rise to these appeals.

5. The appellant in all filed eight complaints against the respondents under Section 138 of the Negotiable Instruments Act, 1881. Three complaints were filed in the year 2011, three in the year 2013 and remaining two in the year 2017. Out of the aforesaid eight complaints, in Complaint Case Nos.621742/16, 621743/16 and 621744/16 the complainant was subjected to cross-examination. On 26.10.2017, the learned counsel for the accused made a statement before the learned Magistrate that the cross-examination of CW-1 (the complainant), as made in the above three cases, shall be adopted in the remaining complaints.

On basis of the above statement, the complainant’s evidence was closed and the cases were directed to be listed for recording of defence evidence. At that stage, an application was filed by the complainant under Section 311 of the Code for summoning certain witnesses. While the matter was pending at that stage, according to the appellant, appellant’s counsel misled the appellant into a belief that appellant’s presence is not required as a settlement was being negotiated. It is the case of the appellant that in these circumstances, the appellant did not appear and ultimately the complaints were dismissed for non-appearance vide order dated 25.01.2019.

6. The order dismissing the complaints for non-prosecution was subjected to challenge before the Delhi High Court through eight separate petitions which came to be dismissed by a common order dated 07.11.2019 impugned in these appeals.

7. We have heard Shri Maninder Singh, learned Senior Advocate appearing for the appellant; and Mr. Samrat Nigam, learned Advocate for the respondents.

8. The learned counsel for the appellant submitted that the learned Magistrate while dismissing the complaints for non- prosecution lost sight of the proviso to sub-section (1) of Section 256 of the Code. It is submitted that the said proviso enables the Magistrate to dispense with the attendance of the complainant and proceed with the case where 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.

It is subm