Case Note & Summary
The appellant, Daulatrao Yashwantrao Patil, filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Subhash Babarao Mankar, alleging dishonour of a cheque. The complaint was fixed for evidence on 6.2.2009, but the complainant was absent. The 4th Judicial Magistrate, FC, Amravati dismissed the complaint and acquitted the accused. The appellant filed Criminal Application No. 39 of 2010 before the Bombay High Court, Nagpur Bench, seeking leave to appeal against the acquittal. The court heard the appellant's counsel and the respondent's counsel on the delay condonation application. The court noted that the controversy was narrow and the legal position settled. The court granted leave to appeal, admitted the appeal, and dispensed with notice to the respondent. The court took up the matter for final disposal. The court held that the dismissal of the complaint for non-appearance of the complainant amounts to an acquittal under Section 256 of the Code of Criminal Procedure, 1973, and an appeal against such dismissal is maintainable with leave of the court. The court allowed the appeal, set aside the Magistrate's order, and remanded the case for fresh disposal on merits.
Headnote
A) Criminal Procedure - Acquittal - Dismissal for Default - Section 256 Code of Criminal Procedure, 1973 - Dismissal of complaint under Section 138 Negotiable Instruments Act, 1881 for non-appearance of complainant amounts to acquittal under Section 256 CrPC - Appeal against such dismissal is maintainable with leave of court - Held that the Magistrate's order dismissing complaint for default is an acquittal and appealable (Para 3-5).
Issue of Consideration
Whether dismissal of a complaint under Section 138 of the Negotiable Instruments Act, 1881 for non-appearance of the complainant amounts to an acquittal under Section 256 of the Code of Criminal Procedure, 1973, and whether an appeal against such dismissal is maintainable.
Final Decision
The court granted leave to appeal, admitted the appeal, and allowed it. The order of the 4th Judicial Magistrate, FC, Amravati dated 6.2.2009 dismissing the complaint and acquitting the accused was set aside. The case was remanded to the Magistrate for fresh disposal on merits in accordance with law.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Section 256 Code of Criminal Procedure
- 1973
- Dismissal for default
- Acquittal
- Appeal against acquittal
- Leave to appeal
Case Details
2010 LawText (BOM) (01) 103
Criminal Application No. 39 of 2010
Mr Shantaram More for appellant, Mr Mahesh Rai for respondent on delay condonation application
Daulatrao Yashwantrao Patil
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Nature of Litigation
Criminal appeal against acquittal in a complaint under Section 138 of the Negotiable Instruments Act, 1881
Remedy Sought
Appellant sought leave to appeal against the order of acquittal passed by the Magistrate dismissing the complaint for non-appearance
Filing Reason
The complaint under Section 138 NI Act was dismissed by the Magistrate due to absence of the complainant on the date fixed for evidence
Previous Decisions
The 4th Judicial Magistrate, FC, Amravati dismissed the complaint and acquitted the accused on 6.2.2009
Issues
Whether dismissal of complaint under Section 138 NI Act for non-appearance of complainant amounts to acquittal under Section 256 CrPC
Whether appeal against such dismissal is maintainable
Submissions/Arguments
Appellant's counsel argued that the dismissal for default is not an acquittal and the appeal is maintainable
Respondent's counsel insisted on notice but the court dispensed with notice due to narrow controversy
Ratio Decidendi
Dismissal of a complaint under Section 138 of the Negotiable Instruments Act, 1881 for non-appearance of the complainant amounts to an acquittal under Section 256 of the Code of Criminal Procedure, 1973, and an appeal against such dismissal is maintainable with leave of the court.
Judgment Excerpts
When the criminal complaint case filed by appellant under Section 138 of the Negotiable Instruments Act was fixed for evidence on 6.2.2009, complainant was absent and, therefore, learned 4th Judicial Magistrate, FC, Amravati dismissed the complaint and acquitted respondent/ accused.
Since the controversy is in narrow compass and legal position is settled on the issue involved, notice to respondent is dispensed with.
Procedural History
The appellant filed a criminal complaint under Section 138 NI Act. The complaint was fixed for evidence on 6.2.2009. The complainant was absent, and the Magistrate dismissed the complaint and acquitted the accused. The appellant then filed Criminal Application No. 39 of 2010 before the Bombay High Court, Nagpur Bench, seeking leave to appeal against the acquittal. The court heard the matter, granted leave, admitted the appeal, and disposed it finally.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 256
