14 Regular HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CrlA(S) No. 3/2021 Punjab Tractors Limited ….. Petitioner (s) Through: Mr. Showkat Ali Khan, Adv. V/s M/s R B Tractors and anr. ….. Respondent(s) Through: Mr. Sikander Hayat Khan, Adv. Coram: Hon’ble Mr. Justice Sanjay Dhar, Judge. ORDER 18.02.2025 1. Through the medium of present appeal, the appellant has challenged order dated 10.09.2012 passed by the learned Judicial Magistrate 1st Class (3rd Additional Munsiff) Srinagar whereby complaint of the petitioner against the respondents for offence under Section 138 of the Negotiable Instruments Act has been dismissed for non-prosecution. 2. It appears that the appellant had filed complaint under Section 138 of the Negotiable Instruments Act before the learned trial Magistrate against the respondents. The record shows that the learned trial Magistrate vide order dated 16.10.2006 took Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11 P a g e | 2 CrlA(S) No. 3/2021 cognizance of the offence and issued process against the respondents. The minutes of the proceedings further reveal that the respondents/accused pursuant thereto put in their appearance in person as well as through their counsel and the matter was adjourned for recording the plea of the accused in terms of Section 242 of J&K Cr.PC which is applicable to the present case. It also appears that on 10.09.2012, neither the complainant nor his counsel appeared before the learned trial Magistrate as a result of which, the complaint came to be dismissed for non-prosecution. 3. It also appears that the complainant/appellant had filed an application before the learned trial Magistrate seeking substitution of the authorized person of the complainant company as new authorized person had been appointed by the said Company. The case was put up for arguments on the said application and because of non-appearance of the complainant, the complaint came to be dismissed for non-prosecution. It appears that the aforesaid order was challenged by the appellant by way of revision petition before the learned 1st Additional Sessions Judge, Srinagar who, vide his order dated 15.04.2015, dismissed the revision petition holding it as not maintainable. Thereafter, the appellant filed the present appeal before this Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11 P a g e | 3 CrlA(S) No. 3/2021 Court challenging the impugned order passed by the learned trial Magistrate. 4. The appellant has challenged the impugned order on the grounds that on the date when the complaint was dismissed for non-prosecution, even accused was not present and his personal presence had not been exempted. It has been further contended that on the date when the impugned order was passed, no steps were required to be taken by the complainant as only the application for substitution of authorized representative of the complainant was listed for consideration on the said date. It has been further contended that there were as many as 30 similar complaints filed by the appellant under Section 138 of the Negotiable Instruments Act and in some of these complaints, the proceedings had been stayed by the High Court and the pendency of those petitions before the High Court had an effect on the complaint, as such no effective proceedings were to be taken in the complaint. It has also been contended that the learned trial Magistrate has not appreciated the true purport of Section 247 of J&K Cr.PC while passing the impugned order. It has further been contended that even counsel for the appellant did not inform the appellant about the dismissal of the appeal well in time. Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11 P a g e | 4 CrlA(S) No. 3/2021 5. I have heard learned counsel for the parties and I have also gone through the record of the trial court and the grounds of appeal. 6. At the centre of controversy in this appeal is the provisions contained under Section 247 of J&K Cr.PC which reads as under: 247. Non-appearance of complainant. - If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto 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 proper to adjourn the hearing of the case to some other day: Provided that 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 the cases where the non- appearance of the complainant is due to his death. From a perusal of the aforesaid provision, it is clear that a Magistrate is vested with jurisdiction to dismiss the complaint and acquit the accused if on the appointed date, the complainant does not appear, unless the Magistrate thinks it proper to adjourn the Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11 P a g e | 5 CrlA(S) No. 3/2021 hearing of the case to some other date. Proviso to Sub Section (1) of Section 247 of J&K Cr.PC vests power with the Magistrate to dispense with the personal appearance of the complainant if his attendance is not necessary and to proceed with the case meaning thereby that in a case where the appearance of the complainant on appointed date is not necessary for the progress of the case, the Magistrate has the discretion to dispense with the personal appearance of the complainant and proceed with the case instead of dismissing the complaint for his non-appearance. 7. In light of aforesaid legal position, let us now advert to the facts of the present case. The record shows that the complainant after the appearance of the accused before the learned trial Magistrate had filed an application seeking substitution of complainant on account of an event whereby the authorized representative of the Company namely Khursheed Ahmad Thoker was stated to be incapable of being attorney of the complainant company as his attorney had been revoked and in his place Mr. Amit Raghav Manager Legal of the complainant company had been authorized to pursue the complaint. The minutes of the proceedings reveals that nobody had appeared for the complainant on a number of dates prior to passing of the impugned order through the accused who was represented by his counsel. It also appears that because of non-appearance of the Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11 P a g e | 6 CrlA(S) No. 3/2021 complainant, the aforesaid application could not be argued and disposed of and on the date when the impugned order came to be passed, the aforesaid application was fixed for arguments. However, due to absence of the complainant and his counsel, the arguments in the case could not take place though counsel for the accused was present on the date fixed. 8. From the above it is clear that it is not a case where further proceedings of the case could have taken place in absence of the complainant or his counsel or that because of the absence of the accused and his counsel, the proceedings could not have taken place on the relevant date. It is a case where due to absence of the complainant and his counsel, the proceedings had come to a halt as a result of which, the substitution application filed by the complainant was not being considered by the learned trial Magistrate. Therefore, the presence of the complainant or his counsel before the learned trial Magistrate on the date on which the impugned order was passed was absolutely necessary for progress of the case. 9. The appellant has not furnished any reason much less a cogent reason for its non-appearance before the Court on the relevant date. Merely because a large number of complaints had been filed by the complainant and in some of these cases the High Court had passed Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11 P a g e | 7 CrlA(S) No. 3/2021 certain interim orders, did not offer a ground to the complainant to avoid appearance before the trial Magistrate 10. In view of the foregoing reasons, the discretion exercised by the learned trial Magistrate by dismissing the complaint in exercise of powers under Section 247 of J&K Cr.PC is not amenable to the interference by this Court in its appellate jurisdiction, as the same does not suffer from any illegality or perversity. 11. For the foregoing reasons, I do not find any merit in this appeal. The same is accordingly dismissed. (Sanjay Dhar) Judge SRINAGAR 18.02.2025 Aasif Whether the order is speaking Yes/No Whether the order is reportable Yes/No Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11