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2018 (11) TMI 1300 - HC - Indian LawsDismissal of the complaint in default by learned Magistrate - Held that:- Keeping in view the effect of dismissal of complaint under Section 138 of the NI Act, the apex Court in case titled as Associated Cement Co. Ltd. versus Keshvanand, [1997 (12) TMI 629 - SUPREME COURT], after discussing the object and scope of Section 256 Cr.P.C, has held that, though, the Section affords protection to an accused against dilatory tactics on the part of the complainant, but, at the same time, it does not mean that if the complainant is absent, the Court has duty to acquit the accused in invitum. It has further been held in the said judgment that the discretion under Section 256 Cr.P.C. must be exercised judicially and fairly without impairing the cause of administration of criminal justice. 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 after leading preliminary evidence by the complainant, the case was transferred to Joginder Nagar, wherefrom it was again sent back to Mandi and the case was tossing between Courts and after receiving it at Mandi, notice was issued to complainant for his presence - 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. In view of the fact that case was transferred from Mandi to Jogindernagar and again re-transferred from Jogindernagar to Mandi, learned Magistrate instead of dismissing the complaint in default should have adjourned the case at least once for a future date, particularly keeping in view the effect of dismissal of the same in default. Dismissal of complaint on first absence of complainant is improper. In normal circumstances, no complainant will be disinterested in pursuing his complaint without any reason. It was a fit case for the Magistrate to exercise his discretion to adjourn the case for a subsequent date. Appeal allowed - decided in favor of appellant.
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