M/s Banarsi Dass and sons vs M/s Bhardwaj General Store

Surinder Singh, Judge

Cr.MP No. 636/2011.

Record received. Appellant is exempted to file certified copy of impugned order dated 30.4.2011. The application stands disposed of.

Cr. A No. 298/2011.

Heard and gone through the record. In the present appeal, the complaint u/s 138 of the Negotiable Instruments Act filed by the appellant herein was dismissed in default on 30.6.2007 by the learned trial Court which has the effect of acquittal, against which the present appeal has been filed. It was admitted for hearing on 6.3.2012.

The perusal of the record reveals that the matter was pending for the service of respondents. The summons issued to the accused-respondents were received back un-served. Therefore, on 9.4.2007, fresh summons were to be issued for 21.5.2007 on which date, the complainant was present but the accused-respondents were not present. The summons were also not received back. An order was passed by the learned trial Court to summon accused persons for 30.6.2007 on which date, the complainant was not present and the case was dismissed in default.

In fact, when the complainant was absent on 30.6.2007 it should have considered by the learned trial Court whether the personal attendance of the complainant was essential on that date for the progress of the case and also whether the situation justified the case being adjourned to another date due to any other reasons. It is well settled that if the situation did not justify the case being adjourned, the Court is free to dismiss the compliant and acquit the accused. But if the presence of the complainant in the summons case, on that date was quite unnecessary then resorting to the step axing down the complaint may not be a proper exercise of the powers, envisaged u/s 256 of the Code of Criminal Procedure.

The perusal of the impugned order reveals that the discretion of dismissing the complaint in default, by the learned trial Court in a slip-shod manner was not fairly and judiciously exercised by the learned trial Court as such the impugned order dismissing the complaint in default is wrong and illegal hence set aside. In result, the case is remanded back to the learned trial Court to dispose it of in accordance with law.

The parties are hereby directed to be present before the learned Additional Chief Judicial Magistrate, Court No. 1, Mandi on 17.9.2012. Send down the record forthwith, so as to reach before the learned trial Court on or before the date fixed.