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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 ..... liminary 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. - Cr. Appeal No. 384 of 2016 - - - Dated:- 31-10-2018 - Mr. Justice Vivek Singh Thakur, Judge For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to complainant for presence on 13.1.2016. On 13.1.2016 for absence of complainant or his counsel, impugned order has been passed, which reads as under:- 13.1.2016 Present None for complainant. Though he has been served for today, as such, let the case file be called again when the cause list for the day stands exhausted. Sd/- (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 view of Section 143 of NI Act, offence under Section 138 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 Cr.P.C., which reads as under: 362. Court not to alter judgment. - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. 9. 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, reported in (1998) 1 Supreme Court Cases 687 , 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. 10. Similarly, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6th May, 2016 and Criminal Appeal No. 559 of 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 Mandi, notice was issued to complainant for his presence. Complainant had engaged a counsel at Mandi for conducting the case and it is submitted on behalf of complainant that date of case, after receiving the summons, was duly informed to the counsel, who, inadvertently, had noted down the date as 14.1.2016. Complainant was duly represented by counsel stationed at Mandi, but his counsel had als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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