CrlA (AS) 17/2025 Page 1 of 4 Serial No. 23 Reg Cause List. HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CrlM(646/2025) IN CrlA(AS) 17/2025. MOHAMMAD LATEEF SALMAN(SENIOR CITIZEN). …Appellant (s) Through: Mr. Badrul Duja, Advocate. VERSUS SURJEET SINGH. Through: Mr. Rabinder Singh, Advocate. …Respondent(s) CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. ORDER 24-12-2025 CrlM No. 646/2025. 01. This is an application filed by the applicant/appellant seeking leave to file the appeal against Order dated 17th of March, 2025, passed by the learned Trial Magistrate. 02. For the reasons stated in the application, the same is allowed and the applicant/appellant is permitted to filed the appeal against Order dated 17th of March, 2025 passed by the Trial Magistrate. 03. The application stands disposed of. CrlA (AS) No. 17/2025. 01. Heard learned counsel for the parties and perused record of the trial court. 02. In the appeal, it has been submitted that on the date on which the impugned order dismissing the complaint of the complainant filed under CrlA (AS) 17/2025 Page 2 of 4 Section 138 of the Negotiable Instruments Act was passed, the counsel appearing for the complainant had to travel to Delhi on account of a medical exigency and, therefore, could not appear before the learned trial Court. In order to substantiate this assertion, the appellant has placed on record copies of the air tickets of his counsel along with the relevant medical record. 03. Section 256 of the Code of Criminal Procedure (Cr.PC) provides the procedure to be adopted by the Magistrate in the event of non-appearance or death of the complainant. It reads as under:- 256. Non-appearance or death of complainant.(1) If thesummons 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. 04. A plaint reading of the aforesaid provision reveals that if the complainant does not appear, the Magistrate is empowered to acquit the accused, unless, for reasons to be recordedhe thinks it proper to adjourn the hearing of the case to another date. Proviso to sub-section (1) lays down that if the complainant is represented by a pleader or by the officer conducting the prosecution, or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate has the discretion to dispense with such attendance and proceed with the case. Thus, there are three eventualities in CrlA (AS) 17/2025 Page 3 of 4 which the learned Trial Magistrate has the discretion to dispense with the personal appearance of the complainant. One, if the complainant is represented by his counsel two if he is represented by the officer conducting the prosecution and third eventuality is if the personal attendance of the complainant is not necessary. 05. Coming to the facts of the present case, a perusal of the trial court record reveals that cognizance of the offence was taken and process was issued against the respondent-accused vide order dated 07.12.2023, and the matter was adjourned to 10.02.2024. Thereafter, the matter was adjourned on a couple of dates and, on 16.07.2024, the accused entered appearance before the learned Trial Magistrate. He furnished personal and surety bonds to the satisfaction of the learned Trial Magistrate, and the matter was adjourned to 05.09.2024 for recording the statement of the accused under Section 251 of the Code of Criminal Procedure.On the next date of hearing, i.e.on 05.09.2024, the accused failed to appear and non-bailable warrants were issued against him, and the matter was posted to 07.11.2024. On the said date, the complainant was absent, whereas the accused along with his counsel was present, and the matter was again adjourned to 24.12.2024. On the said date, none of the parties appeared before the Court. On the next date of hearing, i.e. on 17.03.2025, neither the complainant nor the accused was present, whereupon the learned Trial Magistrate proceeded to pass the impugned order dismissing the complaintfor non-prosecution. 06. From the narration of the aforesaid sequence of the events, it is evident that on the date on which the complaint was dismissed for non- prosecution, the case was listed for recording of the statement of the accused under Section 251 of the Code of Criminal Procedure (Cr.PC). Thus, the CrlA (AS) 17/2025 Page 4 of 4 presence of the complainant on the said date was not necessary before the learned Trial Magistrate. In these circumstances, the learned Trial Magistrate had the option of dispensing with the attendance of the complainant. The learned Trial Magistrate ought to have procured the presence of the accused for recording his statement under Section 251 of the Code of Criminal Procedure (Cr.PC), but instead of adopting the said course, the learned Trial Magistrate proceeded to dismiss the complaint itself. The learned Trial Magistrate has exercised his discretion of not dispensing with the attendance of the complainant in an improper manner as his attendance on the said date was not necessary for progress of the case. 07. For the foregoing reasons, the impugned order passed by the learned Trial Magistrate is not sustainable in law. Accordingly, the appeal is allowed and the impugned order dated 17th of March, 2025, passed by the learned Trial Magistrate is set aside. The matter is remanded to the learned Trial Magistrate with a direction to proceed further in the matter in accordance with the law. The parties are directed to appear before the learned Trial Magistrate on 5th of February, 2026. 08. Disposed of. 09. A copy of this order shall be sent to the learned Trial Magistrate for information. (Sanjay Dhar) Judge SRINAGAR 24-12-2025 Showkat Khan