Sanjay Chouhan vs Ramayan Singh
2022 Latest Caselaw 4039 Chatt

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                                                                              AFR

          HIGH COURT OF CHHATTISGARH, BILASPUR
                            CRMP No. 1352 of 2020
     • Sanjay Chouhan S/o Santram Chouhan Aged About 35 Years
       R/o Daihanpara Risda, Police Station Balko Korba District Korba
       Chhattisgarh
                                                                      ---- Applicant
                                       Versus
     • Ramayan Singh S/o Samar Singh R/o Vishrampur, Ajgarbahar
       Balko, District Korba Chhattisgarh
                                                                  ---- Respondent
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For Applicant : Shri Vikas Pandey, Advocate For Respondent : None present, though served.

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Hon'ble Shri Justice N.K. Chandravanshi Order On Board 27.6.2022

1. This petition has been preferred under Section 378(4) of

the Code of Criminal Procedure (for short 'the Code') against

order/judgment dated 10.02.2020 passed by Judicial Magistrate

First Class, Korba Distt. Korba (CG) in Complaint Case

No.3546/2019, wherein the learned trial Court dismissed the

complaint filed under Section 138 of the Negotiable Instruments

Act, 1881 for want of prosecution.

2. Learned counsel for the petitioner would submit that the

petitioner was represented in every hearing by his counsel and

even on 18.11.2019, he was personally appeared before the trial

Court. However, on 10.02.2020, counsel for the petitioner did not

inform about the date of hearing and due to some bonafide

reason, the counsel also could not appear on that date. Hence,

the Court below has dismissed the aforesaid case for want of

prosecution. It is further submitted that non appearance of the

petitioner and his counsel was bonafide and the accused has not

been noticed yet. Therefore, it is prayed that considering the

aforesaid facts, impugned order be set aside and the matter may

be remanded back to the said Court for hearing and disposal of

the case in accordance with law.

3. I have heard learned counsel for the petitioner and perused

the order impugned as well as the record of the court below with

utmost circumspection.

4. In order to have proper appreciation of the issue in

question, it would be profitable to notice Section 256(1) of the

CrPC, which provides as under:-

"Section 256 : Non-appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed 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 anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day;

            Provided   that     where   the   complainant    is
          represented by        a pleader or by the officer
          conducting     the    prosecution   or   where    the

Magistrate 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."

5. From the careful and close perusal of Section 256 of the

Code, it appears that in a summons case, instituted on a

complaint, if the complainant is absent on the date of hearing, the

Magistrate has to follow either of the three courses, namely:

      1)        Acquit the accused;

      2)        To adjourn the case' and

      3)        To dispense with the attendance of the complainant
                and to proceed with the case.

6. Considering the provisions of Section 256 of the CrPC,

Hon'ble Apex Court in the matter of Associated Cement Co.

Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687 held as

under:

"17. 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."

7. 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 with respect to

appearance on the part of the complainant, the dismissal of the

complaint case is not proper, legal and justified.

8. Thus, careful perusal of the provisions of Section 256 of

the Code, and aforesaid case laws would show that before

proceeding to dismiss the complaint in absence of complainant in

exercise of jurisdiction under 256 of the Code, it must be

considered by the Court whether the presence of the complainant

is really necessary and the Court should act judicially and not

capriciously as the duty has been cast on the Court to consider

whether the personal appearance of the complainant is

necessary or not. The discretion vested in the Court should be

exercised carefully and not hastily.

9. It is trite law that all the cases should decide on merit and

not on such type of technical ground without deciding the issue

between the parties and without providing opportunity to adduce

evidence because order of acquittal under Section 256 of the

Code bar fresh trial and therefore, such order has immense

significance.

10. Perusal of the order of instant case would show that in

each date of hearing the petitioner was represented by his

counsel and on 18.11.2019, the petitioner himself was appeared

before the trial Court. But non-appearance of the petitioner or his

counsel for one day i.e. on 10.02.2020 and dismissing the

complaint for non prosecution, does not seems to be justified and

proper. Further it is not recorded by the trial Court that presence

of the petitioner/complaint was very much necessary on

10.02.2020 and no reason was assigned by the trial Court as to

why the case should not have been adjourned to some other

date.

11. Resultantly, the petition is allowed. Impugned order is set

aside and complaint case No.3546/2019 is restored to its original

number in the file of Judicial Magistrate First Class, Korba for

hearing and disposal in accordance with law on its own merits.

Record of the Court below be sent back forthwith.

Complainant/petitioner is directed to appear before the said Court

on 02.8.2022.

12. Accordingly, the CrMP is allowed in the motion stage itself.

Sd/-

(N.K. Chandravanshi) JUDGE Bini