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2018 (1) TMI 1640 - HC - Indian LawsDishonor of Cheque - complaint came to be dismissed in default for non-presence and non-prosecution, when the case was listed for recording of defence evidence - Section 138 of the Negotiable Instruments Act - HELD THAT:- In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 Cr.P.C. deals with a situation of non-appearance of death of complainant. When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 Cr.P.C. Keeping in view the effect of dismissal in default, the Magistrate is supposed to exercise his discretion with care and caution clearly mentioning in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other day - In present case, the case was at advance stage of hearing, statement of respondent under Section 313 Cr.P.C. had been recorded and case was fixed for recording defence evidence. The complainant was duly represented by the counsel, but his counsel has also failed to put in appearance before the Magistrate for which complainant may not be held liable directly, rather, absence of the complainant, as he has engaged a counsel to represent him, may be considered as justified under the bona fide belief that the counsel may attend his complaint in his absence. For recording statements in defence, presence of complainant was not necessary. The learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. From the stage of complaint, it is evident that presence of complainant, on that day, was unnecessary as the case was at final stage. The Magistrate instead of dismissing the complaint in default should have adjudicated upon the complaint on merit and for that purpose, he might have adjourned the case for a future date - In the impugned order, there is no finding of the Magistrate that the complainant was not pursuing the complaint honestly and diligently. There is no reference of previous history, if any, with regard to conduct of the complainant causing unnecessary delay on account of adjournments sought by him or for want of his presence. There is only reference of his absence on the date since morning till post-lunch session. Therefore, acquittal of the accused without adjudicating the case on merits, due to non-appearance of the complainant on the date of defence evidence, who was sincerely pursuing his remedy, is improper. Appeal allowed - decided in favor of appellant.
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