Steel Strips Limited vs Jyoti Mechanical Movements and Another

Bakhshish Kaur, J.—M/s Steel Strips Limited, the complainant, had filed a complaint u/s 138 of the Negotiable Instruments Act against M/s Jyoti Mechancial Movements and Raj Kumar, its partners. The complaint was dismissed in default on account of non-appearance of the complainant on September 26, 1996 by the trial Court. The application for restoration of this complaint was filed which was also dismissed vide order dated December 16, 1996. Aggrieved by that order, the petitioner preferred this Criminal Revision.

The impugned order reads as under:-

"Present: None

Complainant not appeared nor anybody has put the appearance on behalf of the complainant. Case called several times during the day. It is already 3.30 p.m. So the present complaint is dismissed in default.

File be consigned to the record room. Ann. 26.9.96. Judicial Magistrate 1st Class, Chandigarh."

I have heard Mr. G.S. Sandhawalia, learned counsel for the petitioner.

Mr. Sandhawalia, learned counsel for the petitioner contended that the complaint was pending before the trial Court since long time and the learned Magistrate did not exercise the discretion in judicial manner while dismissing the complaint in default. Rather, he acted in a haste. The accused was summoned. Section 256 of the Code of Criminal Procedure provides that when summons had been issued on complaint and on the date fixed 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 hereinbefore contained, acquit the accused unless for some reason he thinks it proper, to adjourn the hearing of the case to some other date.

Proviso added to Section 256 Cr.P.C. further provides that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. It is, therefore, clear that when the summons had been issued in the complaint, then it is obvious that the Magistrate has to take care as to whether in the facts it would be appropriate to dismiss the complaint or to acquit the accused or to adjourn the case to some other date. The real test is such like matters is always good faith. It would necessarily imply as to whether the complainant was absent for any good reason or not.

In the present case, nothing was required to be done by the complainant, especially when the petitioner was duly represented by the advocate, then it was imperative upon the Magistrate to form his opinion by taking care of the matter as to whether it was appropriate to dismiss the complaint, especially when the accused had not appeared in spite of summons issued by the Court.

Adverting to the impugned order, the accused-respondent had not put in appearance before the trial Court till the passing of impugned order despite the issuance of summoning orders. Thus, under these circumstances, the learned Magistrate should have exercised the discretion in a judicial manner, especially when the complainant had been regularly appearing before the trial Court since long.

As a result. The impugned order dated September 26, 1996 is set aside and the complainant is directed to appear before the learned Chief Judicial Magistrate, who will either proceed with the complaint himself or entrust the same to any other Magistrate or the Illaqa Magistrate, as he deems proper. The complainant shall appear before the learned Chief Judicial Magistrate, Chandigarh, on October 12, 1999, who may himself make or direct any subordinate Magistrate to make further enquiry in this complaint, which had been dismissed in- default, as is required.