2025:HHC:7033 ____________ 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 44 of 2025 Decided on 20.03.2025 Joginder Lal ....Appellant Versus Seema Kashyap ....Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the Appellant : Mr. Pavinder, Advocate. For the Respondent : Mr. Ravi Patiyal, Advocate. Rakesh Kainthla,Judge (Oral). The present appeal is directed against the order dated 27.03.2024, passed by learned Judicial Magistrate First Class, Kandaghat, District Solan (learned Trial Court) vide which the complaint filed under Section 138 of the Negotiable Instruments Act (for short ‘ N.I.Act’) filed by the appellant (complainant before the learned Trial Court) was dismissed for want of appearance and prosecution. (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 2 2025:HHC:7033 offence punishable under Section 138 of the N.I.Act. The complaint was listed for the complainant’s evidence on 10.01.2024 when none appeared on behalf of the complainant. Learned Trial Court ordered the issuance of summons to the complainant returnable for 27.03.2024. The complainant was duly served for the date fixed but he failed to appear before the Court. Hence the learned Trial Court dismissed the complaint for want of appearance and prosecution. 3. Being aggrieved from the order passed by the learned Trial Court, the complainant has filed the present appeal asserting that he had informed his counsel Mr. Sanjeev Rana about the date of the hearing. He remained under the impression that his counsel would appear on his behalf before the learned Trial Court. He also believed that the learned counsel would inform him if his presence was required in the Court. He tried to contact his counsel but his phone was switched off.He subsequently, came to know that his complaint was dismissed for want of prosecution on 27.03.2024. Hence, the present appeal. 3 2025:HHC:7033 4. I have heard Mr. Pavinder, learned counsel for the appellant and Mr. Ravi Patiyal, learned counsel for the respondent. 5. Mr Pavinder, learned counsel for the appellant submitted that the complainant had informed his counsel about the date of the hearing, who had informed him that he would be appearing on his behalf, however, the learned counsel failed to appear due to illness. He relied upon the photocopies of the medical record of Postgraduate Institute of Medical Education and Research, Chandigarh, showing that Mr Sanjeev Rana, learned counsel of the complainant before the learned Trial Court was undergoing the treatment. He further submitted that that the complainant cannot be penalized for the fault of the counsel, therefore, he prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside. 6. Mr. Ravi Patiyal, learned counsel for the respondent/accused submitted that the complainant never appeared before the learned Trial Court and learned Trial Court was left with no option but to dismiss his complaint for want of prosecution. 4 2025:HHC:7033 7. I have given considerable thought to the submissions madeat the bar and have gone through the records carefully. 8. A perusal of the order passed by learned Trial Court shows that the attendance of the complainant has not been marked even on a single date of hearing. The learned Trial Court put the notice of accusation to the accused in the presence of learned vice counsel for the complainant and listed the matter for recording the evidence when none appeared on behalf of the complainant on 02.06.2023.The learned Trial Court ordered the issuance of the notice to the complainant, the matter was listed on 10.01.2024 but again none appeared on behalf of the complainant and the learned Court again issued notice to the complainant returnable for 27.03.2024. When none appeared on behalf of the complainant on 27.03.2024, the complaint was dismissed for want of prosecution. 9. Section 256 of the Cr.P.C. deals with the non- prosecution of the complainant in summons case and reads as under:- 256. Non-appearance or death of complainant.—(1) If the summons has been issued on the complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, 5 2025:HHC:7033 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 the 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.” 10. It is apparent from the bare perusal of Section 256 of Cr.P.C. that it provides for the presence of the complainant and consequences of non-appearance of the complainant. Therefore, the plea taken by the complainant that hehad asked his counsel to appear before the Court, who had assured him to appear in the Court will not help him because the complainant could not have avoided the consequences of his non-appearance as per Section 256 of Cr.P.C. by asking his counsel to appear on his behalf. The matter was listed for the complainant's evidence and any appearance by the learned counsel would not have been sufficient. 11. It was submitted that the complainant should not be penalized for the fault of his counsel. This submission is fallacious because the law required the complainant to appear in person in 6 2025:HHC:7033 Court and, therefore, the complainant was at fault and not the counsel. Thus, he cannot take advantage of the non- appearance of the counsel due to his ailment. 12. The matter was listed for the evidence of the complainant and his presence was required before the Court. The learned Trial Court could not have proceeded further without recoding the evidence of the complainant; thus, the learned Trial was justified in dismissing the complaint when the complainant had failed to appear before the learned Trial Court. 13. No other point was urged. 14. Consequently, the learned Trial Court has taken a reasonable view while dismissing the complaint of the complainant for want of prosecution and no interference is required with the order passed by the learned Court. 15 Therefore, the present appeal fails and the same is dismissed, so also pending application(s), if any. 16. The record of the learned Trial Court below be returned forthwith. (Rakesh Kainthla) Judge 20th March, 2025. (Ravinder)