2020 (9) TMI 256 - HC - Indian Laws

Maintainability of complaint - Dishonor of cheque - complaint preferred by the appellant under Section 138 of the Negotiable Instruments Act has been dismissed in default for want of prosecution - HELD THAT - In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 Cr.P.C. deals with a situation of non-appearance or death of complainant. Section 256 Cr.P.C. provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainant from his personal attendance if it is found not necessary and to proceed with the case. Also, when the complainant is represented by a pleader or by the officer conducting the prosecution, the Magistrate may proceed with the case in absence of the complainant - 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 complainant was contesting its case with due diligence and in fact trial was almost complete on 18.02.2015 when arguments were heard and case was listed for furnishing requisite bonds by the respondent under Section 437-A Cr.P.C. and final order on 26.02.2015. But final order could not be passed on account of conduct of the respondent. The Magistrate was not justified in dismissing the complaint in default for absence of authorized person of the complainant coupled with failure of its counsel to attend the case on that date, particularly, when the complainant was pursuing its case from 18.10.2013 and was being represented through counsel on numerous dates fixed for service of respondent through bailable and non-bailable warrants - Appeal allowed.

Summary

Issues Involved:
Dismissal of complaint under Section 138 of the Negotiable Instruments Act for want of prosecution.

Analysis:
1. The appeal was filed against the order dismissing the complaint under Section 138 of the Negotiable Instruments Act due to lack of prosecution by the appellant.
2. The respondent did not appear in court despite being duly served, indicating a lack of interest in contesting the appeal.
3. The complaint was filed in 2013 for dishonor of a cheque, and the trial progressed with multiple adjournments due to the respondent's absence.
4. Despite various warrants issued against the respondent, she failed to appear in court on multiple dates.
5. The trial court ultimately dismissed the complaint on 24.10.2018 for want of prosecution by the appellant.
6. The appellant argued that the dismissal was unjustified, citing provisions of the Code of Criminal Procedure and previous court judgments.
7. Section 256 of the Cr.P.C. provides for the non-appearance or death of the complainant and the magistrate's discretion in such cases.
8. The court referred to previous judgments emphasizing the need for a fair exercise of judicial discretion in cases of complainant absence.
9. The court highlighted that dismissal for a single default in appearance may lead to a failure of justice, as seen in previous court decisions.
10. The magistrate's discretion to dismiss a complaint for default was acknowledged, but it was emphasized that the decision should be made judiciously.
11. The court concluded that the magistrate was not justified in dismissing the complaint for absence of the complainant's authorized representative, especially given the history of the case.
12. The appeal was allowed, setting aside the impugned order and restoring the complaint to its original position for further proceedings.
13. The appellant was directed to appear before the magistrate for further action, with a reminder that any subsequent defaults would have legal consequences.

This detailed analysis covers the issues involved in the judgment, the legal provisions cited, and the court's reasoning for setting aside the dismissal order and restoring the complaint for further proceedings.