1. The present appeal is directed against the order dated 03.07.2023, passed by learned Additional Chief Judicial Magistrate Court No.1 Mandi, District Mandi, H.P. (learned Trial Court), vide which the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed under Section 256 of CrPC. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act. The Court found sufficient reasons to summon the accused. The matter was listed on 03.07.2023 when the accused was present but the complainant was not present despite having been served by way of notice. Hence, the learned Trial Court dismissed the complaint for want of prosecution.

3. Being aggrieved from the order passed by the learned Trial Court, the complainant has filed the present appeal asserting that he used to appear before the Court on each and every date of hearing. The complaint got transferred from one Court to another. His counsel had noted down the date of hearing as 22.08.2023 instead of 03.07.2023 and the complainant could not appear before the Court due to the mistake of his counsel. The non- appearance of the complainant was neither intentional nor deliberate but due to reasons which were beyond his control. Hence, it was prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside.

4. I have heard Mr. H.S.Rangra, learned counsel for the appellant/complainant and Mr. Rajesh Kumar Bhardwaj, learned counsel for the respondent/accused.

5. Mr. H.S.Rangra, learned counsel for the appellant/complainant submitted that the non-appearance of the complainant before the Court was neither intentional nor deliberate but due to an error in noting the date by the learned counsel. The complaint was at the initial stage and should not have been dismissed at its threshold. Therefore, he prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside.

6. Mr Rajesh Kumar Bhardwaj, learned counsel for the respondent/accused submitted that a false plea has been taken before this Court because a notice was served upon the complainant but he failed to appear on the date fixed. There was no question of noting the wrong date of hearing because the matter was not adjourned in the presence of the learned counsel for the complainant. Hence, he prayed that the appeal be dismissed.

7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

8. At the outset, it is to be noticed that the plea taken by the complainant is false. A perusal of the order sheet shows that the matter was listed on 08.12.2022, on which date the Court ordered the summoning of the complainant for 05.04.2023. The notice was not received back on 05.04.2023 and a fresh notice was ordered to be issued for 22.06.2023. Again, the notice was not received back on 22.06.2023 and a fresh notice was ordered to be issued for 03.07.2023. This time, the notice was duly served upon the complainant for his appearance before the Court on 03.07.2023. The complainant failed to appear in the Court on 03.07.2023 and the Court dismissed the complaint for want of prosecution.

9. The order sheets maintained by the learned Trial Court do not show that the matter was listed for 03.7.2023 in the presence of the learned counsel for the complainant. Hence, the plea taken by the complainant that the learned counsel had noted a wrong date in his diary, due to which he could not appear before the Court, is incorrect. The Court had served the notice upon the complainant and he has not assigned any reasonable cause for non-appearance, before the Court on the date fixed, and the plea that he had no reason to appear before the Court on the date fixed has to be accepted as correct.

10. The order sheets further show that the matter was listed for putting the notice of accusation to the accused on 28.01.2020, and the matter was adjourned. The accused was present on 03.07.2023 and the Court was supposed to put the notice of accusation to the accused. The presence of the complainant for putting the notice of accusation was not required.

11. Section 256 of Cr.P.C. reads as under: -

“256. Non-appearance or death of complainant. — (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto 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.”

12. The ingredients of Section 256of Cr.P.C. were noted by the Hon’ble Supreme Court in S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535: (2008) 2 SCC (Cri) 645: 2008 SCC OnLine SC 733 as under:

“9. The ingredients of Section 256(1) are : (i) that summons must have been issued on a complaint; (ii) the Magistrate should be of the opinion that for some reason, it is not proper to adjourn the hearing of the case to some other date; and (iii) the date on which the order under Section 256(1) can be passed is the day appointed for appearance of the accused or any day subsequent thereto, to which the hearing of the case has been adjourned.

13. It is apparent that before dismissing the complaint, the learned Magistrate should be satisfied that it is not proper to adjourn the hearing of the case. It was held in S. Anand v. Vasumathi Chandrasekar, (2008) 4 SCC 67: (2008) 2 SCC (Cri) 178: 2008 SCC OnLine SC 285, that where the presence of the complainant was not required, the complaint should not have been dismissed. It was observed: -

“12. Section 256 of the Code provides for the disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined.

13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross- examine the witnesses examined on behalf of the defence.

14. The accused was entitled to file an application under Section 311 of the Code of Criminal Procedure. Such an application was required to be considered and disposed of by the learned Magistrate. We have noticed hereinbefore that the complainant did not examine herself as a witness. She was sought to be summoned again for cross- examination. The said prayer has not yet been allowed. But that would not mean that on that ground the court would exercise its discretionary jurisdiction under Section 256 of the Code of Criminal Procedure at that stage or the defence would not examine his witnesses.

15. The presence of the complainant or her lawyer would have been necessary, as indicated hereinbefore, only for the purpose of cross-examination of the witnesses examined on behalf of the defence. If she did not intend to do so, she would do so at her peril but it cannot be said that her presence was necessary. Furthermore, when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the court is required to pass judgment on the merit of the matter."

14. It was held in BLS Infrastructure Ltd. v. Rajwant Singh, (2023) 4 SCC 326: 2023 SCC OnLine SC 200, where the Magistrate is satisfied that the personal attendance of the complainant is not necessary, he can dispense with the attendance of the complainant and proceed with the case. It was observed:-

"12. A plain reading of the proviso to sub-section (1) of Section 256 would indicate that where the Magistrate is satisfied that the personal attendance of the complainant is not necessary, he can dispense with the attendance of the complainant and proceed with the case. Such a situation may arise where the complainant's/prosecution's evidence has been recorded and to decide the case on merits, the complainant's presence is not necessary.

13. In S. Anand [S. Anand v. Vasumathi Chandrasekar, (2008) 4 SCC 67: (2008) 2 SCC (Cri) 178], addressing a situation where the complainant was absent but had already examined his witnesses, this Court observed as follows: (SCC p. 69, paras 12-13)

“12. Section 256 of the Code provides for the disposal of a complaint in default. It entails acquittal. But the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined.

13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence.”

After observing as above, in para 15, it was held thus:(S. Anand case [S. Anand v. Vasumathi Chandrasekar, (2008) 4 SCC 67 : (2008) 2 SCC (Cri) 178], SCC p. 70)

“15. … when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the Court was required to pass a judgment on the merit of the matter.”

14. In Associated Cement Co. [Associated Cement Co. Ltd. v. Keshvanand, (1998) 1 SCC 687: 1998 SCC (Cri) 475], the purpose of inserting a provision like Section 256 of the Code was discussed and in light thereof, in para 16, it was observed as under: (SCC p. 693)

“16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code) It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is perforce to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum.”

After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on the non-appearance of the complainant. Thus, the order of acquittal was set aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed.

15. In the instant case, we notice that there is a specific averment in the special leave petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses. In Para 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant's cross-examination had been over in Complaint Case Nos. 621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW 1's cross-examination in the above three complaint cases was adopted. There appears no specific denial of the aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant.”

15. In the present case, the notice of accusation was to be put by the Court to the accused. The complainant has no role in the same. Hence, the presence of the complainant before the Court was not necessary on 03.07.2023 and the complaint could not have been dismissed in default as per the binding precedents of the Hon’ble Supreme Court.

16. Thus, the learned Trial Court erred in dismissing the complaint for want of prosecution. The learned Trial Court was supposed to put notice of accusation to the accused and thereafter to proceed further as per the law. Hence, the order passed by the learned Trial Court in dismissing the complaint in default is not sustainable and it deserves to be interfered with.

17. In view of the above, the present appeal is allowed and the order passed by the learned Trial Court is ordered to be set aside. The complaint is restored to its original position. The learned Magistrate is directed to proceed further as per the law.

18. The parties Trial Court through their are directed to appear before the learned respective counsel on 29th August, 2024.

19. A copy of the order and record of the learned Trial Court be transmitted to it to proceed further with the case.

18. The appeal stands disposed of, so also the pending application(s), if any.