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 respondents, including Ketan K. Seth and Giltage Management Services Ltd., concerning a cheque for over eleven crore rupees. The complaint was pending before the Special Court at Nagpur. On 30.10.2006, the case was adjourned to 16.11.2006, but the complainant's counsel was not informed of this change. On 16.11.2006, the complainant was absent, and the Special Court dismissed the complaint and acquitted the accused. The appellant appealed to the High Court, arguing that the dismissal was erroneous because the date change was not communicated. The High Court, after perusing the record, found merit in the appellant's submission. It noted that the plea of the appellant that the date was changed without intimation appeared correct. Consequently, the High Court allowed the appeal, set aside the order of dismissal and acquittal, and restored the complaint to its original number, directing the Special Court to proceed with the case in accordance with law.
Headnote
A) Criminal Procedure - Complaint under Section 138 of Negotiable Instruments Act, 1881 - Dismissal for default - The Special Court dismissed the complaint and acquitted the accused because the complainant was absent on the adjourned date of 16.11.2006. However, the date was changed from 30.10.2006 to 16.11.2006 without intimation to the complainant's counsel. The High Court held that the dismissal was improper and set aside the order, restoring the complaint to its original number. (Paras 2-4)
Issue of Consideration
Whether the Special Court was justified in dismissing the complaint and acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881, solely on the ground of the complainant's absence on the adjourned date, when the date was changed without notice to the complainant's counsel.
Final Decision
The appeal is allowed. The impugned order dated 16.11.2006 passed by the Special Court at Nagpur is set aside. The complaint is restored to its original number. The Special Court is directed to proceed with the complaint in accordance with law.
Law Points
- Dismissal of complaint for default under Section 138 of Negotiable Instruments Act
- 1881
- when adjournment date changed without intimation to complainant's counsel
- is improper and requires restoration
Case Details
2010 LawText (BOM) (01) 88
Criminal Appeal No. 403 of 2008
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
Ketan K. Seth, Giltage Management Services Ltd., The State of Maharashtra
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Nature of Litigation
Criminal appeal against dismissal of complaint under Section 138 of Negotiable Instruments Act, 1881
Remedy Sought
Appellant sought setting aside of the order dismissing the complaint and acquitting the accused, and restoration of the complaint
Filing Reason
The complaint was dismissed because the complainant was absent on the adjourned date, but the date was changed without intimation to the complainant's counsel
Previous Decisions
Special Court at Nagpur dismissed the complaint and acquitted the accused on 16.11.2006 due to complainant's absence
Issues
Whether the dismissal of the complaint for default was justified when the adjournment date was changed without notice to the complainant's counsel
Submissions/Arguments
Appellant submitted that the observation of the Special Court that the complainant was absent since long is not correct; the date of appearance was changed from 30.10.2006 to 16.11.2006 without intimation to the counsel for complainant.
Ratio Decidendi
A complaint under Section 138 of the Negotiable Instruments Act, 1881, cannot be dismissed for default of appearance when the adjournment date was changed without intimation to the complainant's counsel, as it amounts to a denial of opportunity of hearing.
Judgment Excerpts
When the criminal complaint case filed by appellant under Section 138 of the Negotiable Instruments Act was fixed for appearance on 16.11.2006, complainant was absent and, therefore, the Special Court at Nagpur dismissed the complaint and acquitted respondent/accused.
Learned counsel for appellant submits that the observation made by the Special Court that complainant was absent since long is not correct. He submits that date of appearance viz. 30.10.2006 was changed to 16.11.2006 without intimation to the counsel for complainant.
On perusal of memo of complaint filed on record, plea of appellant appears to be that the cheque for rupees eleven crores and above issued by respondent-accused in discharge of ...
Procedural History
The appellant filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, before the Special Court at Nagpur. On 16.11.2006, the Special Court dismissed the complaint and acquitted the accused due to the complainant's absence. The appellant then filed Criminal Appeal No. 403 of 2008 before the Bombay High Court, Nagpur Bench, challenging the dismissal.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
