Appellant-complainant feeling aggrieved by order of Prl.

Senior Civil Judge and JMFC, Mudhol in CC.No.291/2014, dated

28.12.2019, dismissing the complaint for non-prosecution,

preferred this appeal.

2. Parties to 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 the

appellant.

4. Complainant has filed private complaint under

Section 200 of Cr.P.C. for the offences punishable under

Sections 138 of N.I.Act. The Trial Court, by its order dated

23.6.2014 took cognizance of offence and ordered to issue

summons to secure presence of accused before the Court to

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answer accusation under Section 138 of N.I.Act. The Trial Court

after getting translation of affidavit by order dated 24.12.2014

held that service of summons is proper and ordered to issue

NBW against accused. The complainant has taken necessary

steps by paying P.F. to issue warrant against the accused to

secure his presence before the Court and the matter came to be

adjourned from time to time. The Trial Court, on 28.10.2019 by

noting the absence of complainant and his counsel has dismissed

the complaint for non-prosecution.

5. Learned counsel for the appellant argued that the

Trial Court ought not to have dismissed the complaint for non-

persecution and should have taken coercive steps to secure the

presence of accused before the Court. There was no fault on the

complainant or his counsel in prosecuting the complaint.

Therefore, dismissal of complaint for non-prosecution cannot be

legally sustained.

6. Complaint allegation would go to show that accused

was hired by the complainant/Company, who offered and agreed

to employ laboures supplied by accused for the purpose of

harvesting sugar cane for the year 2011-2012. Complainant

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from time to time paid money in all amounting to Rs.8,00,000/-.

The laboures provided by accused worked for some time and

labour charges for the work done by them amounts to

Rs.2,22,750/-. Thereafter, accused abruptly stopped supplying

labours for harvesting sugar crane. Accused in order to

discharge lawful debt of remaining amount of Rs.6,01,732/- has

issued cheque bearing No.276054 for the said amount. On

presentation of the said cheque, it was dishonoured for want of

sufficient funds in the account of accused and hence, notice was

given on 3.8.2012, it was refused by the accused. Therefore,

complaint came to be filed on 11.9.2012.

7. The Trial Court, after taking cognizance of the

offence ordered to issue process by order dated 23.6.2014 and

the same was duly served to accused and remained absent.

Hence, NBW was issued and NBW returned unexecuted. The

Trial Court to compel appearance of accused proceeded in terms

of Section 82 of Cr.P.C. The Trial Court has observed that

complainant has not produced recent property extract of accused

and no effective steps have been taken for issuance of

proclamation. Therefore, proceeded to dismiss the complaint for

non-prosecution.

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8. The dismissal of complaint for non-prosecution is in

terms of Section 256(1) of Cr.P.C., which has the result of

acquitting the accused for the offence punishable under Sections

138 of N.I.Act. Whether the absence of complainant before the

Trial Court when he was represented by the counsel can be

termed as person not interested in prosecuting the case? In this

context, it is useful to refer the judgment of Hon’ble Apex Court

in The Associated Cement Co. Ltd. Vs Keshvanand reported

in (1998) 1 SCC 687, wherein it has been observed and held

that the proviso to Section 256 of Cr.P.C though it affords some

deterrence against dilatory tactics on the part of the complaint

who set the law into motion through his complaint, but at the

same time it does not mean that if the complainant is absent,

Court has a duty to acquit the accused. It has been further held

in the said judgment that the discretion under Section 256 of

Cr.P.C, must be exercised judicially and fairly with