Ram Prasanna Sharma, J
1. Heard on application for grant of leave to appeal under Section 378(3) of CrPC.
2. On due consideration, leave is granted.
3. The petition is preferred against Order dated 10.4.2018 passed by Judicial Magistrate First Class, Kabirdham (Kawardha) (CG) in Criminal Case
No.896/2016 wherein the said Court acquitted the respondent for the charges under Section 138 of the Negotiable Instruments Act, 1881 as the case
was dismissed for want of prosecution.
4. As the petition is in nature of restoration of proceedings before the trial Court and the matter is not going to be decided on merits, presence of the
respondent is not required.
5. It appears from the order sheet of the trial Court that the case was fixed for evidence of the complainant and the same is dismissed for single
default.
6. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:-
18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is,
if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate
considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and
proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance
of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another
date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the
accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be
a proper exercise of the power envisaged in the section. The discretion must, therefore be exercised judicially and fairly without impairing the cause of
administration of criminal justice.
Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726, Hon'ble the Apex Court held that in a proceeding
under Section 138 of the Negotiable Instruments Act, 1881, the single default in appearance on the part of the complainant, the dismissal of the
complaint case is not proper, legal and justified.
7. Dismissal of the complaint case was not the only option before the trial Court. The trial Court could have adjourned the case to some other date as
per the provisions of Section 256(1) CrPC.
8. The matter should have been decided on merits and it should not have been sent to record room without deciding issues between the parties and
without providing opportunity to adduce evidence. But that is not done in the present case, therefore, the order passed by the trial Court is not
sustainable.
9. Accordingly, order passed by the trial Court is set aside allowing the petition. The trial Court is directed to proceed with the case in accordance with
law after providing opportunity to adduce evidence to both sides and decide the issues between the parties on merits.
10. The petitioner to appear before the trial Court on 03.4.2019 for further proceedings.
