1 Neutral Citation No. 2025:HHC:21382 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 37 of 2025 Date of Decision: 04.07.2025 __ _________________________________________________ Shri Ram Transport Finance Company Limited ....Appellant Versus Jai Dev …Respondents _____________________________________________________ Coram Hon’ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 ___________________________________________________ For the appellant : Mr. Sanjay Dalmia, Advocate. For the respondent: Mr. Arun Kumar, Advocate vice Mr. Ram Krishan Sharma, Advocate. ___________________________________________________ Sushil Kukreja, Judge (oral) The present appeal has been filed under Section 419 of Bharatiya Nagarik Suraksha Sanhita, 2023 ( for short, ‘BNSS’) against the impugned order dated 20.09.2024, passed by the learned Judicial Magistrate First Class, Arki, District Solan, H.P., in Criminal Case No.126/2016, whereby the complaint filed by the appellant-complainant under Section 138 1 ? Whether reporters of Local Papers may be allowed to see the judgment? 2 Neutral Citation No. 2025:HHC:21382 of the Negotiable Instruments Act (for short, ‘NI Act’) has been dismissed for non-prosecution. 2. It has been submitted by the learned counsel for the appellant that the matter was listed before the learned trial Court on 20.09.2024 for filing reply to the application on behalf of the respondent/accused. However, on the said date, the learned trial Court had dismissed the case for non appearance of the complainant and its counsel. He further submitted that the counsel, who was appearing on behalf of the complainant-company before the learned trial Court, could not put in appearance on 20.09.2024 as he had wrongly entered the date as 30.09.2024 in his diary and thereafter when he inquired about the case, he came to know that the complaint has already been dismissed on 20.09.2024 for non appearance under Section 256 of Cr.PC, which has resulted into miscarriage of justice. 3. I have heard learned counsel for the appellant as well as the learned vice counsel for the respondent and also gone through the material available on record. 3 Neutral Citation No. 2025:HHC:21382 4. In Associated Cement Co. Ltd. Versus Keshvanand, (1998) 1 SCC 687, it has been held by the Hon’ble Supreme Court in para-16 of the judgment as under:- “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 per force 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.” 5. In Mohd. Azeem Versus A. Venkatesh and another, (2002) 7 SCC 726, it has been held by the Hon’ble Supreme Court in para-3 of the judgment as under:- “3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.” 6. In the instant case, after perusal of the material available on record and also keeping in view the law laid down by the Hon’ble Supreme Court, this Court is satisfied that the non- 4 Neutral Citation No. 2025:HHC:21382 appearance of the complainant as well as its counsel before the trial Court on 20.09.2024 was neither intentional nor deliberate, but has occurred due to the bona fide mistake with respect to the date of listing of the case. Therefore, keeping in mind the facts and circumstances of the case and in the interest of justice, the impugned order dated 20.09.2024, dismissing the complaint for non-prosecution, deserves to be set aside. 7. Hence, in view of the facts and circumstances of the case, the present appeal is allowed and the impugned order dated 20.09.2024, passed by the learned Judicial Magistrate First Class, Arki, District Solan HP, is quashed and set aside, subject to costs of Rs.5,000/-, which shall be paid by the appellant-complainant to the respondent-accused on or before the next date of hearing in the trial Court. The complaint filed by the appellant-complainant under Section 138 of NI Act is ordered to be restored to its original number. The trial Court shall decide the complaint on its merits in accordance with law. Parties are directed to appear before the trial Court on 15.07.2025. The record be sent back forthwith. 5 Neutral Citation No. 2025:HHC:21382 The pending miscellaneous application(s), if any, shall also stand disposed of. ( Sushil Kukreja ) July 04, 2025 Judge (VH)