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of <h1>Court sets aside dismissal order for non-appearance, emphasizes procedural fairness</h1> The Court allowed the appeal, setting aside the dismissal order due to non-appearance and non-prosecution by the complainant under the Negotiable ... Dishonor of Cheque - question raised in this appeal is a pure question of law - amount in dispute is only ₹ 60,000/- - HELD THAT:- This Court in VINOD KUMAR VERMA VERSUS RANJEET SINGH RATHORE [2016 (5) TMI 1556 - HIMACHAL PRADESH HIGH COURT] has in similar circumstances where the complaint under the Act had been dismissed in default observed that the order passed by the learned court below is extremely harsh. Moreover, the learned court below has not at all considered as to whether personal attendance of the complainant was essential on the date for the progress of the case. The aforesaid ratio is fully applicable to the facts of the instant case and, therefore, the appeal could have been allowed on this ground alone - it is further found that an additional ground to allow the appeal while dismissing the complaint for default, the learned trial Magistrate was required to follow the procedure. Petition disposed off. Issues:1. Dismissal of complaint in default for non-appearance and non-prosecution.2. Applicability of Section 256 of the Code of Criminal Procedure.3. Judicial discretion in acquitting the accused in absence of the complainant.4. Setting aside the impugned order and directing the appellant to appear before the Magistrate.Issue 1: Dismissal of complaint in default:The Criminal Appeal was against the dismissal of the complaint under the Negotiable Instruments Act due to non-appearance and non-prosecution by the complainant. The Court cited a previous case where a similar complaint dismissal was criticized for being hyper-technical. The Court referred to a Supreme Court judgment emphasizing that a complaint should not be dismissed for a single default by the complainant. The Court found that the dismissal in default was unjust and strict, leading to a failure of justice.Issue 2: Applicability of Section 256 of the Code:The Court highlighted Section 256 of the Code of Criminal Procedure, which deals with the non-appearance or death of the complainant. The section mandates that if the complainant does not appear, the accused may be acquitted unless the Magistrate decides to adjourn the hearing. The Court noted that the trial Magistrate did not consider this provision while dismissing the complaint in default, indicating a procedural lapse.Issue 3: Judicial discretion in acquitting the accused:Referring to a previous case, the Court emphasized that while the law allows for the accused to be acquitted in the absence of the complainant, the Magistrate must exercise this power judiciously. The Court stated that the impugned order lacked the necessary judicial scrutiny and needed to be set aside, allowing the appeal on this ground.Issue 4: Setting aside the impugned order:The Court allowed the appeal, setting aside the order of dismissal in default. The appellant was directed to appear before the Magistrate on a specified date, where the Magistrate would proceed to issue notice to the respondent. The Court clarified that if the complainant does not pursue the complaint, the Magistrate is free to pass appropriate orders as per the law.In conclusion, the Court found merit in the appeal, setting aside the dismissal order and directing further proceedings before the Magistrate. The judgment emphasized the importance of procedural fairness and judicial discretion in handling cases involving non-appearance of the complainant.
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