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TMI Blog2018 (11) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of Negotiable Instruments Act (hereinafter referred to as "NI Act") , came to be dismissed in default for non-presence and non-prosecution, when the case was listed for service of complainant after receiving the same on transfer from Judicial Magistrate, 1st Class, Jogindernagar, District Mandi, H.P. 2. Respondent present in Court has submitted that he is not in a position to engage counsel, therefore, Mr. Nitin Thakur, Advocate is appointed as Amicus Curiae with request to assist the Court on behalf of respondent. After going through the record, under instructions of respondent, learned Amicus Curiae submits that, complaint filed against respondent is a false complaint and respondent has not committed any offence as alleged. In presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vivek Khanal) ACJM Court No. 1, Mandi, H.P. Case called again. 13.01-2016 Present: None for the complainant. None for the accused. Case called time and again throughout the day, but neither the complainant nor his counsel put in appearance before this court. Though the complainant is duly served for today. The cause list for the day stands exhausted, and the non appearance on behalf of the complainant as well as his counsel appears to be intentional and deliberate. As such, the complaint is dismissed for non prosecution on behalf of the complainant. It be consigned to the record room after due completion. Announced in the open court today on this 13th day, of January, 2015. Sd/- ACJM Court No. 1, Mandi, H.P." 4. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death." 7. Section 256 Cr.P.C. provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainant from his personal attendance if it is found not necessary and to proceed with the case. Also, when the complainant is represented by a pleader or by the officer conducting the prosecution, the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint on account of one singular default in appearance on the part of the complainant as a very strict and unjust attitude resulting in failure of justice. 11. Also in case titled as S. Anand versus Vasumathi Chandrasekar, reported in (2008) 4 Supreme Court Cases 67, wherein the complaint under Section 138 of the NI Act was dismissed by the trial Court exercising the power under Section 256 Cr.P.C. on failure of the complainant or her power of attorney or the lawyer appointed by her to appear in Court on the date of hearing fixed for examination of witnesses on behalf of the defence, the apex Court has considered as to whether provisions of Section 256 Cr.P.C., providing for disposal of a complaint in default, could have been resorted to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017, titled as Harpal Singh versus Lajwanti, decided on 13th October, 2017, has held that dismissal of the complaint in default for nonappearance of the complainant on the date fixed without affording him even a single opportunity is unjustified. 15. 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. 16. 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 Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in default. 18. 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 exhausting of cause list of the Court. As discussed above, in the facts and circumstances of the case, 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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