ORDER
Nirmal Yadav, J.
1. Vide this petition, the petitioner has challenged the order dated 2-7-1997 passed by Judicial Magistrate, Ist Class, Gurdaspur (Annexure P-2) whereby her complaint under Sections 138 of the Negotiable Instruments Act and 420 of the Indian Penal Code was dismissed in default.
2. Complainant-Manjit Kaur filed criminal complaint, Annexure P-2 against respondent No. 2 in the Court of Judicial Magistrate Ist Class, Gurdaspur for an alleged offence under the provision of Sections 138B of the Negotiable Instruments Act and 420 of the Indian Penal Code. She was prosecuting the complaint diligently and had been attending Court of the learned Magistrate on all dates excepting one i.e. 2-7-1997. On that date, PW-Mangal Singh, Clerk, State Bank of India, Dhariwal Branch was present, but was not examined and complaint was dismissed in default as the complainant was not present on that day. According to complainant, she could not appear on 2-7-1997 as she was suffering from fever and was advised rest for 10 days by the doctor with effect from 30 6-1997. A copy of the Medical Certificate is appended with the petition as Annexure P-3. It was the case of the petitioner-complainant that respondent No. 2 -Mukhtiar Singh had cheated her by receiving Rs. 93,000/- from the petitioner for sending her relation Balwinder Singh abroad and not adhering to his commitment. When petitioner persisted with her demand to return money, respondent No. 2 issued 3 cheques in favour of the petitioner, details whereof are reproduced as under:
(a) Cheque No. OXF 878568 110024122 for Rs. 30,000/-, dated 10-3-1996 of PNB Madhuban Delhi.
(b) Cheque No. OXF 978569 110024122 for Rs. 30,000/-, dated 20-3-1996 of PNB Madhuban, Delhi,
(c) Cheque No. OXF 978570 110024122 for Rs. 33,000/-, dated 31-3-1996 of PNB Madhuban, Delhi.
When presented, all the three cheques were dishonoured. Petitioner issued notice to respondent No. 2. However, the amount was not paid to the petitioner and, therefore, she filed complaint, Annexure P-2.
3. Learned Counsel for the petitioner-complainant contended that on the fateful day i.e. 2-7-1997 when petitioner/complainant could not appear, as she was suffering from fever, her complaint was dismissed in default. A perusal of the complaint clearly shows that the complainant had made efforts and got the summons issued to PW-Mangal Singh, who was present on that day. However, on account of her illness, the petitioner could not appear. The learned Magistrate has not recorded any reasons for dismissing the complaint, as one single default could not be the reason to dismiss the complaint. The cause of absence pleaded by the complainant was fully supported by the medical certificate issued by the doctor, which should have been considered as a valid ground for restoration of the complaint.
4. Learned Counsel for the petitioner further argued that learned Magistrate has adopted a very strict and unjust attitude which has resulted in failure of justice. In support of this arguments, the learned Counsel referred to a judgment of Supreme Court in Mohd. Azeem v. A. Venkatesh and a judgment of this Court reported as Steel Authority of India Ltd. v. Vishwakarma Agro and Allied Industries (1996) 86 Comp Cas 929 (P & H).
5. The short question that comes up for consideration in the present controversy is as to whether the trial Court in the facts of the case was justified in dismissing the complaint in default in the absence of petitioner or her counsel. Section 256 of the Code of Criminal Procedure, 1973, which provides the answer, may be reproduced as under:
256. Non appearance or death of complainant.-
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons 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.
6. The above provisions clearly provide that the real test in such like cases is of good faith. The Court has to consider the facts of each ease and to see as to whether the complainant was absent for any good reason or not. The Apex Court in Mohd. Azecm’s case (supra), in similar circumstances, set aside the order of the learned Magistrate and restored the complaint observing that one singular default in appearance on the part of the complainant was not sufficient to dismiss the complaint in default when the cause shown by the complainant for the absence had not been disbelieved and was a valid ground for restoration of the complaint. In the present case, even the process had not been issued to the accused and petitioner had placed on record the medical certificate of the doctor advising her rest for 10 days with effect from 30-6-1997. The proviso to Sub-section (1) of Section 256 of the Code of Criminal Procedure clearly provides that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate thinks that the personal attendance of the complainant is not necessary, the same may be dispensed with. The Court need not adopt a shortcut method to put an end to the litigation. The learned Magistrate, before dismissing the complaint in default should have recorded the reasons as to why he does not deem it proper to adjourn the hearing. However, no such reasons were forthcoming and, therefore, the impugned order cannot be sustained.
7. Accordingly, the petition is allowed and impugned order dated 2-7-1997 is set aside. The complaint is restored and learned Magistrate is directed to proceed with it in accordance with law. Since the complaint pertains 10 the year 1997, the learned Magistrate is further directed to conclude the proceedings expeditiously.