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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 ..... se in absence of the complainant - 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. In present case complainant was contesting its case with due diligence and in fact trial was almost complete on 18.02.2015 when arguments were heard and case was listed for furnishing requisite bonds by the respondent under Section 437-A Cr.P.C. and final order on 26.02.2015. But final order could not be passed on account of conduct of the respondent. 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 - Appeal allowed. - Cr. Appeal No. 351 of 2019 - - - Dated:- 24-2-2020 - Vivek Singh Thakur , J . For the Appellant : Ashwani Kau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted and on 14.06.2017 case was transferred from the Court of learned Additional Chief Judicial Magistrate, Kullu to learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, who again issued non-bailable warrants against respondent, returnable on 02.12.2017. 6. Before next date of hearing i.e. 02.12.2017 case was 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 default for want of prosecution. File after completion be consigned to record room. Announced 24.10.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummons case, dismisses the complaint and acquits the accused due to absence 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. 13. 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. v. 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 adm ..... 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 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, reported in 2019 (1) Him.LR (HC) 495. 20. It is true that Magistrate has a discretion to dismiss the complaint for default resulting into acquittal of the accused. However, in present case, for the discussions made hereinafter, I am inclined to set aside the impugned order. 21. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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