Case Note & Summary
The appellant, Dr. Kisanrao Gadekar, was the original complainant in a case under Section 138 of the Negotiable Instruments Act, 1881, filed against respondent No.1, Changdeo Phatangare, before the Judicial Magistrate First Class, Rahata, Ahmednagar. The complaint was registered as S.C.C.No.600 of 2016. After verification, summons were issued to the accused but not served, leading to multiple applications for reissuance. On 23-01-2018, the Magistrate directed preparation of a list of unready matters for passing an order under Section 256 of the Code of Criminal Procedure, 1973 (CrPC). Without any further notice to the complainant, on 17-02-2018, the Magistrate dismissed the complaint for non-prosecution under Section 256 CrPC, noting that the complainant was absent since long. The complainant appealed to the Bombay High Court, Aurangabad Bench. The High Court held that the dismissal was illegal because Section 256 CrPC requires the court to give notice to the complainant before dismissing the complaint for non-appearance. The court observed that the Magistrate had not issued any notice to the complainant and had not given an opportunity to show cause. The High Court allowed the appeal, set aside the dismissal order, and restored the complaint to its original number, directing the Magistrate to proceed from the stage prior to the dismissal order. The court also directed the complainant to appear before the Magistrate on 11-07-2022.
Headnote
A) Criminal Procedure Code - Section 256 CrPC - Dismissal for Non-Appearance - Notice Requirement - The Magistrate dismissed the complaint under Section 256 CrPC for non-appearance of the complainant without issuing any notice or giving an opportunity to show cause. Held that such dismissal is illegal as the provision mandates that the court may dismiss only after giving notice to the complainant. (Paras 5-6) B) Negotiable Instruments Act - Section 138 - Dishonour of Cheque - Restoration of Complaint - The complaint under Section 138 of the Negotiable Instruments Act was dismissed for default. The High Court set aside the dismissal and restored the complaint to its original number, directing the Magistrate to proceed from the stage prior to dismissal. (Para 7)
Issue of Consideration
Whether the dismissal of a complaint under Section 138 of the Negotiable Instruments Act for non-prosecution under Section 256 of CrPC without giving notice to the complainant is legal and proper.
Final Decision
The appeal is allowed. The impugned order dated 17-02-2018 passed by the Judicial Magistrate First Class, Rahata, Ahmednagar in S.C.C.No.600 of 2016 is set aside. The complaint is restored to its original number. The Magistrate is directed to proceed from the stage prior to the dismissal order. The complainant is directed to appear before the Magistrate on 11-07-2022.
Law Points
- Section 256 CrPC requires notice to complainant before dismissal for non-appearance
- Section 138 Negotiable Instruments Act
- 1881
- dismissal for default
- restoration of complaint
