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2024 DIGILAW 1333 (ALL)

Mohit Pandey v. State of U. P.

2024-05-16

MOHD.FAIZ ALAM KHAN

body2024
JUDGMENT Mohd. Faiz Alam Khan, J. Heard Shri. Udai Bhan Pandey, learned counsel for the appellant/complainant, Shri. Ashid Ali, learned counsel appearing for the respondent no.2 as well as Shri. Rajesh Kumar Singh, learned A.G.A. for the State and perused the record. 2. The instant appeal has been preferred by the appellant/complainant- Mohit Pandey against the order dated 25.11.2016 passed by Additional Judge, Court No.5, Lucknow in Complaint Case No. 3453 of 2008 (Mohit Pandey v. Shikha Banerji), under Section 138 of the Negotiable Instrument Act, Police Station Hazratganj, District Lucknow, whereby the complaint filed by the appellant was dismissed in default of the complainant. 3. Learned counsel for the appellant/complainant while drawing the attention of this Court towards the impugned order dated 25.11.2016, vehemently submits that the impugned order has been passed in utter disregard to the eventuality dealt with under Section 256 of the Cr.P.C. and no reasons has been given in the impugned order as to why the presence of the complainant was required for the further progress of the case and by passing a cryptic order, the complaint of the complainant/appellant has been dismissed. 4. While drawing the attention of this Court towards Section 256 of the Cr.P.C., it is vehemently submitted that mere non-presence of the complainant would not ipso facto be sufficient for dismissal of the complaint, as its satisfaction is required to be recorded by the trial court that due to the non-appearance of the complainant without any sufficient reason, the accused is being subjected to hardship and it is only on this score, the complaint may be dismissed under Section 256 of the Cr.P.C. 5. It is also submitted that the proviso of Section 256 of the Cr.P.C clearly provides that, the discretion lies with the presiding officer of the trial court to exempt the personal appearance of the complainant, which has not been dealt with in the impugned order. 6. Reliance in this regard has been placed by learned counsel for the appellant on the law laid down by this Court in 'Pramod Tyagi v. State of U.P.' reported in [(2019) 109 ACC 823]. 7. 6. Reliance in this regard has been placed by learned counsel for the appellant on the law laid down by this Court in 'Pramod Tyagi v. State of U.P.' reported in [(2019) 109 ACC 823]. 7. Learned A.G.A. on the other hand supported the impugned order while Shri. Ashid Ali, learned counsel appearing for the accused/respondent no.2 vehemently opposes the submissions made by learned counsel for the appellant/complainant on the ground that for the last many dates the complainant was not appearing before the Court while the respondent no.2/accused was personally present and having regard to this eventuality, as it was evident that the complainant is dragging the case without any just excuse, the trial court has passed a justified order and no interference is required therein. 8. Having heard learned counsel for the parties and having perused the record, it is evident that on 25.11.2016 the complaint filed by the appellant-Mohit Pandey under section 138 of the N.I. Act, the trial court has dismissed the same in default of the complainant. However, no provision has been mentioned in the order, under which the complaint has been dismissed. 9. Chapter XX of the Code of Criminal Procedure provides procedure for the trial court of summons cases by the Magistrate. 10. Section 256 of the Cr.P.C. takes care of an eventuality where the complainant is not appearing or has died. 11. For ready reference, Section 256 of the Cr.P.C. is produced herein-below in verbatim:- 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." 12. (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." 12. Perusal of Section 256 of the Cr.P.C. would reveal that the trial court has been empowered to take care of a situation where a complainant is deliberately not appearing in the Court and the same is causing hardship to the accused person. A conjoint reading of the whole Section would give an impression that the trial court has been empowered to deal a situation where dilatory tactics are being adopted by the complainant and the same is causing hardship to an accused person, who is bonafidely contesting the proceeding of a criminal case. 13. This Section affords protection to an accused against these dilatory tactics of the complainant, but on the other hand it doesn't mean that if the complainant is absent on any date, there is a duty caste on the trial court to acquit the accused, as the provision appended with Section 256 of the Cr.P.C. clearly says that a discretion lies with the trial court to exempt the personal appearance of the complainant. 14. To the understanding of this Court, Section 256 of the Cr.P.C. may be used by the trial court where the non-appearance of the complainant on a given day is causing hardship to the accused person and on the ground that the criminal case is being kept pending for the purpose of subjecting the accused person to remain present in criminal proceedings of a case to which the complainant is not litigating with diligence. 15. The impugned order would reveal that it has not been mentioned by the trial court as to for what purpose the appearance of the complainant was required on 25.11.2016. It cannot be gauged/assessed from the impugned order that in what way the proceedings of the criminal case has halted on account of non-appearance of the complainant even it has not been mentioned as to in what way the accused person, who was present personally is facing any hardship, as if an accused person is appearing before the trial court only for the purpose of seeking bail, in that condition, the appearance of the complainant is not warranted. 16. 16. Thus, in the considered opinion of this Court, the impugned order dated 25.11.2016 has been passed without assigning any reason and it projects that only on account of the absence of the complainant on 25.11.2016, his complaint has been dismissed. 17. It is to be recalled that recording of reasons is life and soul of a judicial order and any order devoid of any reason in order to arrive at a finding is a dead corpus and, thus, for the reasons mentioned herein-before, the impugned order dated 25.11.2016 may not withstand the test of law and is liable to be set aside/ quashed. 18. In result, the appeal preferred by the appellant/complainant Mohit Pandey is hereby allowed and the order dated 25.11.2016 passed by Additional Judge, Court No.5, Lucknow in Complaint Case No. 3453 of 2008 (Mohit Pandey v. Shikha Banerji), under Section 138 of the Negotiable Instrument Act, Police Station Hazratganj, District Lucknow, whereby the complaint filed by the appellant was dismissed in default of the complainant, is, hereby, set-aside/quashed. 19. The Trial Court is directed to proceed further with the complaint case filed by the appellant from the stage, it was dismissed. 20. The parties shall appear before the trial court for further progress of the complaint case on 6th June, 2024. 21. It is clarified that this Court has not opined anything on the merits and demerits of the case and the trial court would be free to arrive at its own conclusion having regard to the evidence which may be produced before it. 22. It is further provided that if complainant would not appear before the trial court or will not contest the complaint diligently, the trial court would be free to pass any order even under Section 256 of the Cr.P.C.