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2018 (11) TMI 1300 - HC - Indian Laws


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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