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Issues involved: Dismissal of complaint in default under Section 138 of the Negotiable Instruments Act, appeal against the dismissal, application for condonation of delay, interpretation of Section 256 of the Code of Criminal Procedure.
Dismissal of complaint in default under Section 138 of the Negotiable Instruments Act: The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, which was dismissed in default by the Judicial Magistrate, resulting in acquittal. The appellant then filed an appeal against this dismissal, challenging the order on grounds of limitation. The delay in filing the appeal was later condoned. The trial court found reasonable grounds to summon the respondent as an accused under Section 138, and the accused was ordered to be summoned. However, on the day of the hearing, neither the complainant nor her counsel was present, leading to the dismissal of the complaint for non-prosecution. The appellant attempted to explain her absence, but the order of dismissal was deemed indefensible. Interpretation of Section 256 of the Code of Criminal Procedure: The court examined Section 256 of the Code, which deals with non-appearance or death of the complainant. The section provides for the acquittal of the accused if the complainant does not appear, unless the court decides to adjourn the hearing or dispense with the complainant's attendance. The court referenced a previous judgment to emphasize that the court must consider the necessity of the complainant's presence for the progress of the case before dismissing the complaint. In this case, the trial court failed to consider whether the complainant's presence was essential, leading to the order being set aside and the complaint remanded back for proper disposal. Conclusion: The High Court set aside the order of dismissal in default and remanded the complaint back to the trial court for proper disposal in accordance with the law. The court directed the parties to be present for further proceedings and instructed the Registrar General to circulate the judgment to subordinate courts for adherence to Section 256 of the Code. The records of the lower courts were to be returned, and the matter was disposed of accordingly.
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