M/S. Rit Enterprises vs Shakuntala Tiwari And Anr

Heard on application under Section 378(4) of CrPC for grant of leave to appeal.

On due consideration, leave is granted.

This petition has been preferred against Order dated 10.12.2019 passed by Judicial Magistrate First Class, Korba (CG) in Criminal Case Case No.

3769/2019, filed under Section 138 of the Negotiable Instruments Act, 1881, wherein the said Court dismissed the complaint filed by the petitioner for

want of prosecution.

It appears from the order sheet of the trial Court that the case was fixed for appearance of respondent/accused and it was not fixed for appearance

of the petitioner. r

The case was fixed for appearance of the respondent therefore, presence of the petitioner was not compulsoty before the trial Court. Dismissal of

the complaint case was not the only option before the trial Court. It should have adjourned the case for some other date as per the provisions of

Section 256(1) CrMP.

In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:-

“18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First

is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the

Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his

attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether

personal attendance of the complainant is essential on that day for 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 was quite unnecessary then resorting to the step of axing down the

complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore be exercised judicially and fairly without

impairing the cause of administration of criminal justice.â€​

Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726, Hon'ble the Apex Court held that in a proceeding

under Section 138 of the Negotiable Instruments Act, 1881, the single default in appearance on the part of the complainant, the dismissal of the

complaint case is not proper, legal and justified.

The trial Court should have proceeded with the case after appearance of both sideand should have decided between the parties but that is not done.

The procedure adopted by the trial Court is not proper. Accordingly, order passed by the trial Court is set aside by allowing the petition. The trial Court

is directed to proceed with the case after appearance of both sides.

The petitioner to appear before the trial Court on 30.03.2020 for further proceedings.