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2013 DIGILAW 101 (HP)

Bhanu Verma v. Ramesh Kumar

2013-02-25

SURINDER SINGH

body2013
JUDGMENT Surinder Singh, J. The matter is fixed for hearing today. Perused the record and heard the learned counsel for the respondent, as the learned counsel for the appellant is not present. 2. The grouse of the appellant is that his complaint under Section 138 of the Negotiable of Instrument Act was dismissed in default by the learned trial Court on 16.5.2006, when the case was fixed for the statement of accused under Section 313 of the Code of Criminal Procedure. Consequently, the accused was acquitted. It is contended in para-4 of grounds of appeal that neither the complainant nor his counsel put in appearance on 16.5.2006 due to bonafide mistake as the counsel wrongly noted the date as 19.5.2006 instead of 16.5.2006. But on 19.5.2006, they came to know that the matter had already been dismissed in default on 16.5.2006 by the learned trial Court. 3. On having examined the contention and also the provisions of Section 256 of the Code of Criminal Procedure, hereinafter referred to as “the Code”, I find that the absence of the complainant was not necessary on 16.5.2006 and the learned trial Court could not have dismissed the complaint in default. 4. As a matter of fact, the court must consider in a summons case, whether the personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned, the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant, on that day is quite unnecessary, then resorting to the step of axing down the complaint may not be a proper exercise of the powers, envisaged under Section 256 of the Code. The discretion in the aforesaid section has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order passed by the Court, but in the instant case, no such reason has been assigned by the learned trial Court, rather, he seems to have repeatedly called the case and ultimately dismissed it for want of presence, which is absolutely wrong and incorrect, as such, the impugned order dated 16.5.2006 is unsustainable and is accordingly set-aside. Consequently, the appeal is allowed and the case is remanded back to the learned trial court with a direction to enter it against its original number and record the statement of the accused under Section 313 of the Code of Criminal Procedure and dispose it of in accordance with law expeditiously. 5. The parties are hereby directed to be present before the learned trial court on 03.4.2013 at 10 a.m. Records of the Court below be returned forthwith. Pending application(s), if any, are also disposed of. The matter stands disposed of.