@JUDGMENTTAG-ORDER
Mahesh Grover, J.@mdashThis is a petition u/s 482 of the Cr. P.C. praying for quashing of the order dated 26-5-2003 (Annexure P-6) and order
dated 19-5-2005 (Annexure P-8), passed by the learned trial Court (sub Divisional Judicial Magistrate, Balachaur).
2. The facts of the case are that the petitioner had paid an amount of Rs. 5 lacs to respondent No. 1 on the strength of the representation made by
the said respondent that he would send the petitioner abroad. The respondent No. 1 failed to fulfill his obligation and when the petitioner
demanded his amount back, he issued a cheque of Rs. 5 lacs bearing No. 445358 dated 31-7-1999 drawn on Oriental Bank of Commerce,
Manimajra. On presentation, the said cheque was dishonoured and returned with a remark ""Insufficient Funds"". The petitioner served a legal notice
and thereafter filed a complaint in the year 2000 u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the Act''). The
respondent was thereafter ordered to be summoned for 9-2-2001 vide orders dated 16 12 2000 after preliminary evidence was recorded.
3. The respondent continued to evade the process of service and repeated process was issued by the Court for effecting the service upon him.
Even bailable warrants were issued but the presence of the respondent could not be secured. The petitioner thereafter made an attempt to serve
the respondent through publication which was allowed and the notice was published in the ''Dainik Tribune''. Bailable warrants were again issued.
4. The trial Court then came to the conclusion that it was not possible to secure the presence of respondent through ordinary process and ordered
the proclamation u/s 82 of the Cr. P.C. by passing an order to that effect on 26-7-2002. Subsequently, the matter was adjourned a number of
times. Pursuant to the aforesaid proceedings u/s 82 of the Cr. P. C, the relevant orders are as below:
Present: Complainant with counsel.
Proclamation u/s 82 Cr. P.C. received back unexecuted. As per earlier order, proclamation be again issued for 25-9-2002.
Sd/-SDJM/21-8-2002
Present: Complainant with counsel.
Proclamation received back unexecuted. Ahlmad is directed to issue reminder for 12-10-2002.
Sd/- SDJM/25-9-2002
Present : Sh. Lalit Chowdhary, Cl. for the complainant.
Statement of Sh. Harkewal Ram, HC No. 202, P.S. Balachaur, has been recorded with regard to execution of proclamation u/O 82 Cr. P.C. As
per the report of the head constable proclamation was effected on 11-10-2002 vide his report Ex. PI. Notice to SHO P.S. Balachaur, be issued
with direction to produce the Roznamcha before the Court on 24-10-2002.
Sd/- SDJM/12-10-2002
Present : Sh. Lalit Chowdhary, Cl. for the complainant.
Head Constable Gurchain Singh is present and he has produced the Roznamcha of 11-10-2002. He has been directed to further direct HC-
Harkewal on 25-10-2002 for proceeding further.
Sd/- SDJM/24-10-2002
Present : Sh. Lalit Chowdhary, Cl. for the complainant.
HC Harkewal Singh is present and I have gone through the Roznameha dt. 11-10-2002. HC Harkewal Singh has not made any entries in the
Rupat Roznarncha. 1 warn HC Harkewal Singh to be careful in future and I order to issue fresh proclamation u/s 82 Cr. P.C. for procuring the
presence of accused Pankaj Joshi. Proclamation be issued for 2-12-2002.
Sd/- SDJM/25-10-2002.
Present : Sh. Lalit Chowdhary, Cl. for the complainant.
File put up before me as Ld. Presiding Officer is on leave. Proclamation affected. To come upon 20-12-2002 for statement of executing official.
Sd/-SDJM/2-12-2002
Present: Sh. Lalit Chowdhary, Adv. for the complainant.
Case adjourned to 14 2-2003 for recording the statement of executing official. Executing Official be summoned for 14-2-2003.
Sd/- SDJM/16-11-2002
Present: Complainant with counsel.
HC Harkewal Singh be summoned for 16-1-2003 for recording his statement.
Sd/-SDJM/20-12-2002
Present : Sh. Lalit Chowdhary, CL for the complainant.
Notice sent in the name of HC Karkewal Singh received back unserved. He again be summoned for 28-2-2003.
Sd/- SDJM/14-2-2003
Present : Sh. Lalit Chowdhary, Cl. for the complainant.
Notice not issued by the Ahlmad as directed. He is warned to be careful in future. As per earlier order notice be issued for 20-3-2003.
Sd/- SDJM/28-2-2003
Present: Counsel for complainant. File put up before me as Ld.
Presiding Officer is on leave. As per earlier order, Ahlmad is directed to issue notice for 24-4-2003.
Sd/- SDJM/20-3-2003.
5. The matter was again adjourned on 24-4-2003 to 26-5-2003 for recording the statement of HC Harkewal Singh.
6. On 26- 5-2003. the complainant was dismissed in default as the complainant was not present. The order is reproduced as below-
Present : None
Complaint called several times during the day. None appeared. As such, the complaint stands dismissed in default for want of prosecution. File be
consigned to the record room;
7. The petitioner was not in the knowledge of the aforesaid fact and was laboring under the impression that the respondent has already been
declared as a Proclaimed Offender. He thereafter went abroad and appointed his wife Amarjit Kaur as his general attorney to prosecute the
complaint.
8. On returning back, he came to know that the respondent had been arrested by the police in a case registered vide FIR No. 173 dated 1-5-
2005 under the provisions of Sections 420, 406, 467, 468, 471 and 120B IPC. The petitioner, accordingly, moved an application before the trial
Court for issuance of production warrants of the accused arid gave the particulars of his arrest arid also the fact that he was in police custody with
Police Station Udyog Vihar, Gurgaon. The trial Court dismissed the said application on 19-5-2005 as after the perusal of the record, it was
revealed that the complainant had already been dismissed on 26-5-2003 2003.
9. By way of the present petition the petitioner has assailed the order dated 26-5-2003 (Annexure P-6) and the order dated 19-5-2005
(Annexure P-8).
10. It was contended by the learned Counsel for the petitioner that the petitioner was laboring under the impression that the respondent had been
declared the Proclaimed Offender and the moment he came to know about his wherebouts, he moved an application for production warrants of
the respondent and it is only then that he came to know that his complaint had been dismissed. Even on that date i.e. 26-5-2003, when the
complaint had been dismissed in default, his presence as such before the Court, was not essential as the proceedings were going on pursuant to
Section 82 of the Cr. P.C. for declaring the respondent as a Proclaimed Offender.
11. The trial Court, according to the learned Counsel for the petitioner, was wrong in dismissing the complaint in default and even if the same had
been done erroneously, the High Court, u/s 482 of the Cr. P.C., was empowered to restore the complaint hack to its original status. Reliance was
placed on a judgment reported as 2004 (3) RCR (Criminal) 952 and also on a judgment reported as 2006(4) RCR 678 : (2006 Cri LJ 3170).
12. I have heard learned Counsel for the petitioner. No one has put in appearance on behalf of respondent No. 1.
13. Concededly, respondent No- 1 had not been served and the matter was pending before the court pursuant to the proceedings initiated by it u/s
82 of the Cr. P.C. The record also reveals that neither the complainant nor the respondent was present. A perusal of the orders of the trial Court
shows that the proceedings were being adjourned repeatedly to secure the presence of the respondent. In the process, the explanation given by the
petitioner that he was labouring under the impression that the respondent had been declared as a Pro-claimed Offender, thereby prompting his
absence, cannot be entirely ruled out. In any case, his presence on the date when the complaint was dismissed, was not essential for the purpose of
prosecuting the complaint.
14. Section 256 of the Cr. P.C. deals with the situation where the complainant-fails to appear which is as follows:
256. Non appearance or death of complaint -
(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent there to
which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit
the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion
that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non appearance of the complainant is due to his death.
15. The trial Court had the option to acquit the accused or adjourn the matter to some other date if for some reason it thought proper to do so.
16. The proviso to the aforesaid section stipulates that where the complainant is represented by a pleader or by any other officer conducting the
prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may
dispense with his attendance and proceed with the case.
17. It is, thus, not the case that the Magistrate was left with no option but to dismiss the case in default in view of the non-presence of the
complainant or his pleader. It was incumbent upon him to examine the case in the light of the aforesaid provisions of law and come to the
conclusion whether the presence of the complainant was essential on that date of hearing or whether the hearing, of the case could be adjuoured
for some other date or whether the personal attendance of the complainant was necessary.
18. No such application of mind is reflected from a perusal of the impugned order (Annexure P-6). The Hon''ble Supreme Court, in a judgment
reported as Associated Cement Co. Ltd. Vs. Keshvanand, , with reference to the aforesaid provisions of Section 256, has observed as follows:
16. 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 the 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.
19. The trial Court, therefore, was clearly in error in resorting to the extreme step of dismissal of the complaint especially in view of the fact that the
matter was pending primarily to secure the presence of the respondent and proceedings u/s 82 of the Cr. P.C. were contemplated against him. As
such, in the given facts and circumstances of the case, it was incumbent upon the trial Court to have explored the possibility of either adjourning the
hearing of the case to some other date or to have concluded whether the presence of the complainant was necessary so as to take such a serious
view of his absence which resulted in the passing of the impugned order vide which the life of the complainant was extinguished.
20. For the reasons recorded above, the impugned order (Annexure P-6) is set aside and the matter is remanded back to the Court of Sub
Divisional Judicial Magistrate, Balachaur who shall dispose of the complaint in accordance with law.
21. In view of the fact that the complaint has been directed to be restored back to its original status, the order (Annexure P-8) is also set aside and
the trial Court is directed to re-examine the application moved by the petitioner for issuance of production warrants against the respondent.
22. The present petition is accordingly allowed and disposed of as aforesaid.