Ram Prasanna Sharma, J
1. Heard on IA No.01/2019 for condonation of delay in filing the instant petition.
2. For the reasons mentioned in the application, the same is allowed and the delay of 645 days in filing the petition is hereby condoned.
3. Also heard on application for grant of leave to appeal under Section 378(4) of CrPC.
4. On due consideration, leave is granted.
5. This petition has been preferred against Order dated 16.02.2017 passed by Judicial Magistrate First Class, Raipur Distt. Raipur (CG) in Complaint
Case No.92/2012 wherein the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed for want
of prosecution.
6. As the petition is in nature of restoration of complaint case and as warrant was issued against the respondent but he did not appear, his presence is
not required for hearing the petition.
7. It appears from the order sheet of the trial Court that the case was earlier fixed for issuance of warrant against the respondent but from the record
it is not clear whether the warrant was issued or not, whether it was served or not or whether service report is awaited. The trial Court dismissed the
complaint case in absence of the petitioner/complainant upon his single default.
8. 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.
9. Dismissal of the complaint was not the only option before the trial Court. It could have adjourned the case to some other date as per the provisions
of Section 256(1) CrPC. The case should have been proceeded to decide the issues between the parties, but this was not done and the record was
sent to record room without deciding issues between the parties and without providing opportunity to adduce evidence. Therefore, the order passed by
the trial Court is not sustainable.
10. Accordingly, order passed by the trial Court is set aside allowing the petition. The trial Court is directed to proceed with the case after securing
presence of the respondent and decide the issues between the parties on merits after providing opportunity to adduce evidence to both sides.
11. The petitioner to appear before the trial Court on 10.4.2019 for further proceedings.
