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TMI Blog2020 (9) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed in default for want of prosecution. 2. In present appeal, respondent has been duly served, but despite that she has not appeared in Court, which indicates that she is not interested to contest the appeal. Perusal of record also reveals that she was not appearing in the trial Court since February 2015. Arguments in the trial Court were heard on 18.02.2015 and thereafter learned counsel representing the respondent was also not turning up and trial Court could not ensure her presence despite issuing warrants against her. 3. Complaint by the appellant, under Section 138 of N.I. Act for dishonouring of cheque issued by respondent, was preferred in the year 2013. After pursuing and contesting the case by the parties, arguments in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken on 27.11.2017 and on that day, date for returning non-bailable warrants issued against the respondent was modified from 02.12.2017 to 28.04.2018, but on that day also, non-bailable warrants were received back unexecuted and thereafter again non-bailable warrants were issued for 24.10.2018, but the same could not be issued for want of filing P.F. for the said purpose. 7. On 24.10.2018, impugned order of dismissing complaint has been passed by trial Court, which reads as under:- "24.10.2018:Present:-None for complainant. Case repeatedly called since morning however, none appeared on behalf of complainant. The complainant has also not taken steps i.e. PF & CA for the service of the accused. The present complaint thus is dismissed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 11. 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 neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case titled as Mohd. Azeem v. A. Venkatesh and another, reported in (2002) 7 Supreme Court Cases 726, has considered dismissal of the complaint 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. 15. Also in case titled as S. Anand v. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 367 of 2015, titled as Vinod Kumar Verma v. Ranjeet Singh Rathore, decided on 6th May, 2016 and Criminal Appeal No. 559 of 2017, titled as Harpal Singh v. Lajwanti, decided on 13th October, 2017, has held that dismissal of the complaint in default for non-appearance of the complainant on the date fixed without affording him even a single opportunity is unjustified. 19. The same principle has been reiterated by this Court in cases titled Dole Raj Thakur v. Pankaj Prashar, reported in Latest HLJ 2018 (HP) 266; Dole Raj Thakur v. Jagdish Shishodia, reported in Latest HLJ 2018 (HP) 296; in Cr. Appeal No. 301 of 2018 titled Hemant Kumar vs. Sher Singh decided on 27.9.2018; and in Cr. Appeal No. 469 of 2018 titled Pooja Sharma vs. Suresh Kumar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding this Court, I am of the opinion that the Magistrate was not justified in dismissing the complaint in default for absence of authorized person of the complainant coupled with failure of its counsel to attend the case on that date, particularly, when the complainant was pursuing its case from 18.10.2013 and was being represented through counsel on numerous dates fixed for service of respondent through bailable and non-bailable warrants. It is also a fact that the date on which the case has been dismissed in default was listed for service of respondent and on that day, personal presence of authorized representative of complainant was not necessary especially when counsel had already been engaged to represent the complainant and the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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