Default dismissal in Section 138 cheque cases is improper when the complainant's presence is not essential at an advanced trial stage.

In a complaint under Section 138 of the Negotiable Instruments Act, the power to dismiss for default under Section 256 CrPC is discretionary and must be exercised judicially. Where the case had reached the defence evidence stage, the accused had already been examined under Section 313 CrPC, and the complainant was represented by counsel, the complainant's personal presence was not essential. A solitary absence, without assessing whether adjournment was more appropriate or recording any lack of diligence or deliberate non-prosecution, did not justify dismissal. The improper dismissal was set aside and the complaint was restored for decision on merits.

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Issues: Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 could be dismissed in default for a single absence of the complainant when the matter had reached the stage of defence evidence and the complainant was represented by counsel.

Analysis: Section 143 of the Negotiable Instruments Act, 1881 makes the offence under Section 138 triable summarily and attracts the procedure for summons cases, including Section 256 of the Code of Criminal Procedure, 1973. The power under Section 256 is discretionary and must be exercised judicially, with due regard to whether the complainant's presence is necessary for the progress of the case and whether adjournment would be more appropriate. Where the case has reached an advanced stage, the accused has already been examined under Section 313 of the Code of Criminal Procedure, 1973, and defence evidence is to be recorded, the complainant's personal presence may be unnecessary, particularly when the complainant is represented by counsel. Dismissal of the complaint for a solitary default, without assessing the propriety of adjournment and without any finding of lack of diligence or deliberate non-prosecution, is unjustified. Section 362 of the Code of Criminal Procedure, 1973 does not support sustaining such an improper disposal when the complaint ought to have been decided on merits.

Conclusion: The dismissal of the complaint in default was not justified, and the order was set aside with a direction to restore the complaint and decide it in accordance with law.

Ratio Decidendi: In a complaint under Section 138 of the Negotiable Instruments Act, 1881, dismissal for default under Section 256 of the Code of Criminal Procedure, 1973 is impermissible where the complainant's presence is not essential at an advanced stage of the trial and the court ought to exercise its discretion judicially in favour of adjournment and decision on merits.

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