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TMI Blog2008 (8) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate shall not acquit the accused. Secondly, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter. Presence of the complainant, on that day was quite un-necessary, then resorting to the step of axing down the complaint may not be a proper exercise of the power, envisaged in the Section as held in Associated Cement Company Ltd. v. Keshvanand [ 1997 (12) TMI 629 - SUPREME COURT] . Therefore, the discretion u/s 256 has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were heard and I have examined the record. 2. In brief, the facts giving rise to the present appeals are that Shri N.K. Sharma, appellant herein had filed two separate complaints No. 373/ 3 of 05/02 and 374/3 of 05/01 under Section 138 of the Act, against the respondents in the Court of learned Chief Judicial Magistrate, Shimla, which were assigned to J.M.I.C. (IV) Shimla for its disposal in accordance with law. Presence of the respondent could be procured, after about three years, that too by resorting to the coercive methods. 3. Notice of accusation was put to the respondents on 12.7.2005 to which they pleaded not guilty and claimed trial. Thereafter, the case was adjourned and fixed for evidence of the complainant repeatedly. Des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for 30.6.2006 before the learned trial Court, as similar complaints were also pending before the District Consumer Forum. On 2.8.2006 the regular clerk of the Counsel resumed the work. On checking the diary, he found that there were some discrepancies in the dates. Thus, on 30.7.2006 on inquiry he came to know that both the complaints were dismissed in default on 30.6.2006. This averment made in appeal is irreconcilable because he could not have inquired about the matter on 30.6.2006 when he had joined his duties in his office on 2.8.2006. This ambiguity could not be explained by the learned Counsel for the appellant nor the affidavit of the clerk has been filed and it is not an excusable reason which can be taken as a bona fide mistake. Ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for exercising the power under this Section. Firstly, if the Court thinks in a situation, it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Secondly, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter. When the Court notices that the complainant is absent on a particular day the Court must consider whether the personal attendance of the complainant is essential on that day for the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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