Case Note & Summary
The appellant, Nagpur District Central Cooperative Bank Limited, filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Indramani Merchants Private Limited, alleging that a cheque for over sixteen crores issued by the respondent in discharge of liability had bounced. The Special Court at Nagpur dismissed the complaint on 18.12.2006 due to the absence of the complainant, observing that the complainant was absent since long. The appellant appealed, contending that the observation was incorrect and that the date of appearance had been changed from 21.8.2006 to 4.9.2006 without intimation to the complainant's counsel. The High Court perused the memo of complaint and the order-sheet, noting that the complainant had appeared on earlier dates and that the dismissal was for non-appearance on a single date. The Court held that the Special Court ought to have given an opportunity of hearing before dismissing the complaint. Consequently, the High Court allowed the appeal, set aside the order of dismissal, and restored the complaint to its original number, directing the Special Court to proceed with the matter in accordance with law.
Headnote
A) Criminal Law - Dishonour of Cheque - Section 138 Negotiable Instruments Act, 1881 - Dismissal of Complaint for Non-Appearance - The Special Court dismissed the complaint for non-appearance of the complainant on 18.12.2006, observing that the complainant was absent since long. However, the High Court found that the complainant had appeared on earlier dates and the date was changed without intimation to the complainant's counsel. Held that dismissal for non-appearance on a single date without giving an opportunity of hearing was not justified. (Paras 2-5)
Issue of Consideration
Whether the Special Court was justified in dismissing the complaint under Section 138 of the Negotiable Instruments Act, 1881 for non-appearance of the complainant on a single date without giving an opportunity of hearing.
Final Decision
Appeal allowed. The order dated 18.12.2006 dismissing the complaint is set aside. The complaint is restored to its original number. The Special Court is directed to proceed with the matter in accordance with law and give opportunity of hearing to both sides.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Dismissal of complaint for non-appearance
- Restoration of complaint
- Opportunity of hearing
- Principles of natural justice
Case Details
2010 LawText (BOM) (01) 87
Criminal Appeal No. 366 of 2009
Mr M.V. Samarth for appellant, Mr Adgokar, APP for respondent no.2-State
Nagpur District Central Cooperative Bank Limited, through its Manager/Chief Officer Shrikrishna Sukhdeo Naphade
1. Indramani Merchants Private Limited, 2. The State of Maharashtra
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Nature of Litigation
Criminal appeal against dismissal of complaint under Section 138 of the Negotiable Instruments Act, 1881 for non-appearance of complainant.
Remedy Sought
Appellant sought setting aside of the order dismissing the complaint and restoration of the complaint.
Filing Reason
The Special Court dismissed the complaint for non-appearance of the complainant on 18.12.2006.
Previous Decisions
The Special Court at Nagpur dismissed the complaint on 18.12.2006 and acquitted the accused.
Issues
Whether the Special Court was justified in dismissing the complaint for non-appearance on a single date without giving an opportunity of hearing.
Submissions/Arguments
Appellant submitted that the observation that complainant was absent since long was incorrect; the date of appearance was changed without intimation to the complainant's counsel.
Respondent no.2-State supported the appellant's submission.
Ratio Decidendi
Dismissal of a complaint under Section 138 of the Negotiable Instruments Act, 1881 for non-appearance on a single date without giving an opportunity of hearing is not justified, especially when the complainant had appeared on earlier dates and the date was changed without intimation to the complainant's counsel.
Judgment Excerpts
When the criminal complaint case filed by appellant under Section 138 of the Negotiable Instruments Act was fixed for appearance on 18.12.2006, complainant was absent and, therefore, the Special Court at Nagpur dismissed the complaint and acquitted respondent/ accused.
On perusal of memo of complaint filed on record, plea of appellant appears to be that the cheque for rupees sixteen crores and above issued by respondent- accused in discharge of liability, had bounced.
In the circumstances, the order of dismissal of complaint for non-appearance on a single date cannot be sustained.
Procedural History
The appellant filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881. The Special Court at Nagpur dismissed the complaint on 18.12.2006 for non-appearance of the complainant. The appellant filed Criminal Appeal No. 366 of 2009 before the Bombay High Court, Nagpur Bench.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
