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2018 (11) TMI 1300 - HC - Indian LawsDismissal of the complaint in default by learned Magistrate - Held that - Keeping in view the effect of dismissal of complaint under Section 138 of the NI Act, the apex Court in case titled as Associated Cement Co. Ltd. versus Keshvanand, 1997 (12) TMI 629 - SUPREME COURT , after discussing the object and scope of Section 256 Cr.P.C, has held that, though, the Section affords protection to an accused against dilatory tactics on the part of the complainant, but, at the same time, it does not mean that if the complainant is absent, the Court has duty to acquit the accused in invitum. It has further been held in the said judgment that the discretion under Section 256 Cr.P.C. must be exercised judicially and fairly without impairing the cause of administration of criminal justice. Keeping in view the effect of dismissal in default, the Magistrate is supposed to exercise his discretion with care and caution clearly mentioning in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other day. In present case after leading preliminary evidence by the complainant, the case was transferred to Joginder Nagar, wherefrom it was again sent back to Mandi and the case was tossing between Courts and after receiving it at Mandi, notice was issued to complainant for his presence - the learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. In view of the fact that case was transferred from Mandi to Jogindernagar and again re-transferred from Jogindernagar to Mandi, learned Magistrate instead of dismissing the complaint in default should have adjourned the case at least once for a future date, particularly keeping in view the effect of dismissal of the same in default. Dismissal of complaint on first absence of complainant is improper. In normal circumstances, no complainant will be disinterested in pursuing his complaint without any reason. It was a fit case for the Magistrate to exercise his discretion to adjourn the case for a subsequent date. Appeal allowed - decided in favor of appellant.
Issues:
Appeal against dismissal of complaint under Section 138 of Negotiable Instruments Act due to non-presence and non-prosecution. Application of Section 256 of the Code of Criminal Procedure in cases under Section 138 of NI Act. Judicial discretion in dismissing complaints for non-appearance of complainant. Effect of dismissal of complaint in default under Section 138 of NI Act. Analysis: The appeal was filed against the dismissal of a complaint under Section 138 of the Negotiable Instruments Act due to non-presence and non-prosecution of the complainant. The respondent contended that the complaint was false and that he had not committed the alleged offense. The issue at hand was the dismissal of the complaint in default by the Magistrate, which led to the appeal. The case involved the application of Section 256 of the Code of Criminal Procedure (Cr.P.C.) in cases under Section 138 of the NI Act. Section 256 Cr.P.C. provides for the non-appearance or death of the complainant and empowers the Magistrate to either acquit the accused or adjourn the case if deemed necessary. The provision also allows for the dispensation of the complainant's personal attendance under certain circumstances. Judicial discretion in dismissing complaints for non-appearance of the complainant was a crucial aspect of the judgment. The court highlighted that the discretion under Section 256 Cr.P.C. must be exercised judiciously and fairly without compromising the administration of criminal justice. Previous judgments were cited to emphasize the importance of a balanced approach in such situations to prevent unjust outcomes and ensure fairness in proceedings. The effect of dismissal of a complaint in default under Section 138 of the NI Act was thoroughly discussed. The court referred to various judgments, including those of the Apex Court and High Courts, to establish that dismissal for a single absence of the complainant without valid reasons or history of delay was unjustified. The Magistrate was expected to consider all relevant factors before dismissing a complaint and should adjourn the case if necessary to avoid premature or unfair dismissals. Ultimately, the court allowed the appeal, setting aside the impugned order and directing the complaint to be registered and decided in accordance with the law. The judgment underscored the need for a careful exercise of judicial discretion in such matters to uphold the principles of justice and fairness. The assistance provided by the Amicus Curiae was acknowledged, and the parties were directed to appear before the Magistrate for further proceedings.
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