2026:HHC:33177 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMP(M) No. 1442 of 2026 Reserved on: 03.08.2026 Date of Decision: 07.08.2026. Naresh Kumar ...Petitioner Versus Pratima ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr Rakesh Thakur, Advocate. For the Respondent : Nemo Rakesh Kainthla, Judge The applicant/appellant has filed the present application seeking leave to appeal against the order dated 08.06.2026 passed by the learned Chief Judicial Magistrate, Solan (learned Trial Court) vide which the complaint filed by him was ordered to be dismissed for non-prosecution. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:33177 2. Briefly stated, the facts giving rise to the present application are that the applicant/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 (NI Act). The learned Trial Court took cognisance of the complaint on 06.11.2025, and listed the matter on 17.03.2026, when none appeared on behalf of the complainant. Hence, the learned Trial Court issued a notice to the complainant and his counsel, returnable for 08.06.2026. The notice was duly served upon the complainant. The complainant requested his counsel to appear on his behalf on 08.06.2026, as he had personal difficulty in appearing before the Court on the date fixed because of a pre-scheduled Pooja ceremony at his home. The learned counsel assured the complainant that he would appear in the matter and would apprise him about the proceedings of the case. The learned counsel intimated the applicant that the matter was dismissed in default for non-prosecution. The learned counsel further disclosed that he had gone to the Court of the learned Civil Judge, Kandaghat, Tehsil Kandaghat, due to engagement in the cases there, and he remained engaged in the said Court for the whole day. He forgot to instruct the vice 3 2026:HHC:33177 counsel to appear on the complainant's behalf. The matter was at an initial stage, and the notice was to be served upon the accused. The complainant could not appear before the Court because of the bona fide belief that his counsel would appear before the Court. Hence, it was prayed that the present application be allowed and the leave to appeal be granted. 3. Mr Rakesh Thakur, learned counsel for the applicant/complainant, submitted that the applicant was told by his learned counsel that he would be appearing before the Court and the applicant remained under the bona fide belief that he would be duly represented before the Court. However, learned counsel remained busy at Kandaghat in various cases and could not appear before the Court. The complainant should not be penalised for the fault of the learned counsel. Hence, he prayed that the present application be allowed and the leave to appeal be granted. 4. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 5. It is undisputed that the matter was earlier taken up by the learned Trial Court on 17.03.2026, on which day the 4 2026:HHC:33177 complainant failed to appear, and the Court ordered the issuance of the notice returnable for 08.06.2026. There was no representation on behalf of the complainant on 08.06.2026 despite the service. Hence, the Court dismissed the complaint for non-prosecution. 6. It is also not disputed that the notice was duly served upon the complainant. Therefore, the complainant knew that his presence was required before the Court. He claimed that there was a pooja ceremony in his home. He has not even given the details of the pooja ceremony and why his presence was required in the pooja ceremony rather than in the Court. He has not even provided any reason for his non-appearance before the Court on 17.03.2026, when the matter was earlier listed before the Court. He has not even stated as to what action was taken by him against his counsel for making a false representation to him of putting in an appearance before the Court and not adhering to the representation so made by him. It was laid down by the Hon'ble Supreme Court in Rajneesh Kumar v. Ved Prakash, 2024 SCC OnLine SC 3380 that a litigant is supposed to be present before the Court, and he cannot throw the blame upon the 5 2026:HHC:33177 counsel to escape from the liability of his absence. It was observed: “10. It appears that the entire blame has been thrown on the head of the advocate who was appearing for the petitioners in the trial court. We have noticed over a period of time a tendency on the part of the litigants to blame their lawyers for negligence and carelessness in attending the proceedings before the court. Even if we assume for a moment that the concerned lawyer was careless or negligent, this, by itself, cannot be a ground to condone long and inordinate delay, as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief. 11. In the aforesaid context, we may refer to a decision of this Court in the case of Salil Dutta v. T.M. & M.C. Private Ltd., (1993) 2 SCC 185, wherein this Court observed as under: — “8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal, i.e. the party who engages him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant, but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq [(1981) 2 SCC 788: AIR 1981 SC 1400] must not be understood as an absolute proposition. As we have mentioned hereinabove, this was an ongoing suit posted 6 2026:HHC:33177 for final hearing after a lapse of seven years from its institution. It was not a second appeal filed by a villager residing away from the city, where the court is located. The defendant is also not a rustic, ignorant villager but a private limited company with its head office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hearing, they felt piqued and refused to appear before the court. Maybe it was part of their delaying tactics, as alleged by the plaintiff. Maybe not. But one thing is clear: they chose not to cooperate with the court. Having adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.” (Emphasis supplied) 7. Thus, the applicant cannot get the benefit of the non- appearance of the learned counsel before the Court. 8. It was asserted that the learned counsel remained busy at Kandaghat. However, that is not a sufficient cause for non-appearance before the Court. Section 346 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) deals with the adjournment or postponement of the hearing. Clause (c) of the third proviso to Section 346(2) specifically provides that the engagement of the advocate of a party in another Court shall not be a ground for adjournment. It was laid down by the Allahabad High Court in Dildar v. State of U.P., 2011 SCC OnLine All 2007: (2012) 77 ACC 360 7 2026:HHC:33177 that the engagement of counsel in other cases is no reason for adjournment. It was observed at page 362: “16. Strike of lawyers, engagement of Counsel in other cases or engagement of fresh Counsel are definitely the reasons not contemplated under section 309 Cr. P.C. and the Trial Court would see that no case be adjourned on this ground….” 9. If the appearance of the learned counsel before another Court cannot be a ground for adjournment, it cannot be a ground for non-appearance before the Court as well. Hence, the reason for absence assigned by the applicant is contrary to law and cannot be accepted. 10. The order sheet also shows that the learned Trial Court had directed the complainant to take steps on 06.11.2025, but no steps were taken as per the report of the Registry, which shows that the applicant is not interested in pursuing the matter before the Court. 11. Therefore, the order passed by the learned Trial Court cannot be faulted, and there is no reason to grant leave to appeal in the present case. Consequently, the present application fails, and it is dismissed. 8 2026:HHC:33177 Cr. Appeal (A-SB) No. 68 of 2026 11. Since the application for granting leave to appeal has been dismissed, the appeal does not survive and is disposed of. (Rakesh Kainthla) Judge 7th August, 2026 (Nikita)