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2008 (8) TMI 984 - HC - Indian LawsDishonour of cheque - requirement of presence or absence of the complainant - Whether procedure of private complaint under the India Penal Code or the Negotiable Instruments Act is same according to sec 256 of CrPC? - Powers of Magistrate u/s 256 to dispense with the personal attendance of the complainant. HELD THAT:- The perusal of the Section 256 reveals that two constraints are imposed on the Court for exercising the power under this Section. Firstly, if the Court thinks in a situation, it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Secondly, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter. Presence of the complainant, on that day was quite un-necessary, then resorting to the step of axing down the complaint may not be a proper exercise of the power, envisaged in the Section as held in Associated Cement Company Ltd. v. Keshvanand [1997 (12) TMI 629 - SUPREME COURT]. Therefore, the discretion u/s 256 has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order passed by the Court. Though the Procedure of private complaint u/s 138 of the Act largely differs from a private complaint in respect of the offences under the Indian Penal Code. But Section 256 of the CrPC makes no difference whether it is a case under, the IPC or the present Act. On going through the impugned order it transpires that the learned trial Court did not apply its mind to the provisions of Section 256, it has taken a conscious decision with respect to the presence or absence of the complainant on that day when it dismissed the complaint and acquitted the accused. In absence of it the impugned order is unsustainable and is accordingly set aside. Consequently, both the complaints referred above be now restored and re-registered to its original number by the learned trial Court and proceed with the matter in accordance with law. The parties are directed to appear before the learned trial Court. Both the appeals are disposed of accordingly.
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