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2017 DIGILAW 882 (KAR)

PRAJWAL HOMETEL v. V. ARUNKUMAR

2017-06-02

K.N.PHANEENDRA

body2017
JUDGMENT : K.N. Phaneendra, J. Notice to be issued to the respondent is dispensed with. 2. Heard the learned counsel for the appellant. 3. This appeal is filed seeking to set aside the order dated 27.03.2017 passed in CC No. 26245/2016 on the file of the XXVII Additional Chief Metropolitan Magistrate at Bengaluru. 4. The record discloses that the petitioner has filed a private complaint under Section 200 of Cr.P.C. against the respondent for the offence under Section 138 of Negotiable Instrument Act (N.I. Act). In fact, vide orders dated 26.11.2016, the court has taken cognizance and recorded sworn statement by way of affidavit of this complainant and then ordered to issue process against the accused by way of issuing hand summons, after registering the case against the accused. Subsequently, the accused was also permitted to take out court summons. The order-sheet dated 31.01.2017 discloses that the case was set down for steps. It appears the complainant has taken steps and on 28.02.2017 the summons issued to the accused, was awaited. In the meantime, on 27.03.2017 the complainant remained absent. There was no representation and the learned Magistrate has dismissed the complaint for non-prosecution and recorded consequential acquittal of the accused. 5. The above said order is not in accordance with law because of the reason that while recording an acquittal or dismissal of the complaint, the Magistrate has to record his satisfaction under Section 256 of Cr.P.C. wherein the above said provision reads as under: 256. Non-appearance or death of complainant.- (1) If the summons 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. 6. (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. 6. The proviso to the above said section clearly indicates 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 may dispense with his attendance and proceed with the case. Therefore, it is incumbent upon the Magistrate to satisfy himself that the presence of the complainant is absolutely necessary on that particular date, if it is not, the Magistrate can dispense with the attendance and proceed with the case. Herein, in this particular case, it appears there was no necessity of the presence of the complainant because the summons issued to the accused was awaited. The trial court has not recorded as to what happened to the summons issued to the accused earlier. 7. Under the above said circumstances, I find sufficient ground in the argument of the learned counsel. Therefore, the order in this appeal deserves to be set aside. Hence, the following : ORDER 8. The appeal is allowed. The order dated 27.03.2017 in CC No. 26245/2016 on the file of XXVII Addl. C.M.M., Bengaluru is hereby set aside. The complaint is restored on to the file of the learned Magistrate with a direction to the complainant to assist the court in taking steps at the appropriate stages against the accused and he should be present before the court unless his presence is dispensed by the Learned Magistrate. 9. In view of the disposal of the appeal I.A. No. 1/17 is allowed. The special leave is granted.