Case Note & Summary
The appellant/complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the respondent/accused for dishonour of a cheque of Rs.2,50,000/- issued towards repayment of a hand loan. The complaint was registered as Summary Criminal Case No.1989/2019 on 03/04/2019. On 05/01/2023, the Additional Chief Judicial Magistrate, Court No.5, Akola, passed an order directing the complainant to appear and lead evidence on the next date, failing which the matter would be disposed of for want of prosecution. On 07/01/2023, the Magistrate dismissed the complaint for want of prosecution, resulting in acquittal of the accused. The appellant filed an application seeking leave to appeal against that order. The High Court, after hearing the counsel for the appellant, admitted the appeal and allowed the leave application. The court observed that the dismissal was not justified as the complainant's absence was not deliberate and the matter was pending for evidence. The court set aside the order dated 07/01/2023 and restored the complaint to its original number, directing the trial court to proceed with the matter in accordance with law.
Headnote
A) Criminal Law - Negotiable Instruments Act - Section 138 - Dismissal for want of prosecution - The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, which was dismissed for want of prosecution on 07/01/2023, resulting in acquittal of the accused. The High Court held that the dismissal was not justified as the complainant's absence was not deliberate and the matter was pending for evidence. The court allowed the leave to appeal and set aside the order, restoring the complaint to its original number. (Paras 3-5)
Issue of Consideration
Whether the order dismissing the complaint for want of prosecution and acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881, is liable to be set aside when the complainant was absent on the date of hearing.
Final Decision
The court allowed the leave to appeal, admitted the appeal, and set aside the order dated 07/01/2023 passed by the Additional Chief Judicial Magistrate, Court No.5, Akola, in Summary Criminal Case No.1989/2019. The complaint was restored to its original number, and the trial court was directed to proceed with the matter in accordance with law.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Dismissal for want of prosecution
- Acquittal
- Leave to appeal
- Restoration of complaint
Case Details
2025 LawText (BOM) (09) 224
Criminal Application (APPA) No.322 of 2023 in Criminal Appeal (Stamp) No.2237 of 2023
Mr. U.V. Chakravarty, Advocate h/f. Mr. A.M. Tirukh, Advocate for the Appellant
Hare Madhav Electronics, Through its Proprietor, Vijay Motilal Pinjwani
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Nature of Litigation
Criminal appeal against dismissal of complaint under Section 138 of the Negotiable Instruments Act, 1881 for want of prosecution.
Remedy Sought
Leave to file appeal and quashing of order dated 07/01/2023 dismissing the complaint.
Filing Reason
The complaint under Section 138 of the Negotiable Instruments Act, 1881 was dismissed for want of prosecution on 07/01/2023, resulting in acquittal of the accused.
Previous Decisions
The Additional Chief Judicial Magistrate, Court No.5, Akola, dismissed the complaint for want of prosecution on 07/01/2023.
Issues
Whether the order dismissing the complaint for want of prosecution and acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881, is liable to be set aside when the complainant was absent on the date of hearing.
Submissions/Arguments
The learned counsel for the appellant argued that the dismissal was not justified as the complainant's absence was not deliberate.
Ratio Decidendi
The dismissal of a complaint for want of prosecution under Section 138 of the Negotiable Instruments Act, 1881, is not justified if the complainant's absence is not deliberate and the matter is pending for evidence. The court has the power to restore such complaint to ensure justice.
Judgment Excerpts
The present application is being filed seeking leave to file appeal against the order dated 07/01/2023 passed below Exh.1 by the learned Additional Chief Judicial Magistrate, Court No.5, Akola, in Summary Case No.1989/2019.
The appellant further prays for quashing and setting aside of the said order, wherein, the learned Magistrate was pleased to dismiss the complaint for want of prosecution, resulting into acquittal of the accused.
In the facts and circumstances of the case, the order dated 07/01/2023 passed by the learned Additional Chief Judicial Magistrate, Court No.5, Akola, in Summary Criminal Case No.1989/2019, is set aside. The complaint is restored to its original number.
Procedural History
The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, which was registered as Summary Criminal Case No.1989/2019 on 03/04/2019. On 05/01/2023, the Magistrate passed an order directing the complainant to appear and lead evidence on the next date. On 07/01/2023, the Magistrate dismissed the complaint for want of prosecution, resulting in acquittal of the accused. The appellant then filed Criminal Application (APPA) No.322 of 2023 seeking leave to appeal against that order, along with Criminal Appeal (Stamp) No.2237 of 2023.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
