SRINAGAR, AUGUST 14: The Jammu & Kashmir and Ladakh High Court has held that a Magistrate cannot dismiss a complaint and acquit an accused merely because the complainant is absent, unless the complainant’s personal presence before the court is necessary for the proceedings.
Justice Sanjay Dhar, while hearing a complaint related to dishonour of a cheque under Section 138 of the Negotiable Instruments Act, observed that Section 247 of the J&K Criminal Procedure Code also empowers a Magistrate to dispense with the complainant’s personal attendance when his presence is not required.
The High Court made it clear that dismissal of a complaint on the ground of non-appearance can be justified only in cases where the complainant’s personal presence is absolutely necessary.
The case before the Court involved a complaint that was pending as the parties were attempting to arrive at an amicable settlement. During the proceedings, the accused had already paid ₹50,000 and ₹4 lakh and had undertaken to clear the remaining amount through instalments.
The High Court noted that the settlement process between the parties was still underway and that even the statement of the accused under Section 242 of the J&K CrPC had not yet been recorded.
In such circumstances, the Court observed that there was no apparent necessity for the complainant to remain personally present before the trial court when the complaint came to be dismissed.
The High Court accordingly held that the trial Magistrate had not properly exercised jurisdiction by dismissing the complaint for non-prosecution and acquitting the accused solely on account of the complainant’s absence.
The Court set aside the impugned order and directed the trial Magistrate to proceed with the complaint in accordance with law.
The ruling reinforces that the absence of a complainant, by itself, cannot automatically result in dismissal of proceedings where his personal presence is not essential for the matter to progress.(KNC)
