Judicial discretion under Section 256 CrPC should not dismiss a cheque bounce complaint for a single absence without fair adjournment.

A complaint under Section 138 of the Negotiable Instruments Act, tried as a summons case, attracts Section 256 CrPC, which permits the Magistrate either to dismiss for non-appearance or to adjourn the matter. That discretion must be exercised judicially and fairly, with regard to the circumstances of the case. Where there was no pattern of deliberate delay, the complainant was represented by counsel, and the matter had already been transferred between courts, dismissal on a solitary absence was treated as an improper exercise of discretion. The complaint was therefore directed to be restored and decided in accordance with law.

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Issues: Whether dismissal of a complaint under Section 138 of the Negotiable Instruments Act for a single non-appearance of the complainant was justified, and whether the Magistrate ought to have adjourned the matter instead of dismissing it for non-prosecution.

Analysis: A complaint under Section 138 of the Negotiable Instruments Act is tried summarily and the procedure for summons cases applies, making Section 256 of the Code of Criminal Procedure applicable. That provision gives the Magistrate discretion either to dismiss the complaint and acquit the accused or to adjourn the hearing, and the discretion must be exercised judicially and fairly. The record showed no pattern of deliberate delay or absence on the part of the complainant, and the case had already been transferred between courts, while the complainant was represented by counsel. In these circumstances, dismissal on the first absence, without granting at least one further , was held to be an improper exercise of discretion.

Conclusion: The dismissal of the complaint for non-prosecution was not justified, and the complaint was directed to be restored and decided in accordance with law.

Ratio Decidendi: In a summons complaint under Section 138 of the Negotiable Instruments Act, the power under Section 256 of the Code of Criminal Procedure must be exercised judiciously, and a complaint should not ordinarily be dismissed for a solitary absence where adjournment would better serve the interests of justice.

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