Case Note & Summary
The applicant, Murlidhar s/o Harkisandas Manwani, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Sharangdhar s/o Ramlal Lohar, in Criminal Case No. 981 of 2006 before the Judicial Magistrate, First Class, Raver. The complaint was dismissed in default on 25.08.2008, and the accused was acquitted. The applicant sought leave to appeal against this order. The High Court heard the parties and noted that the dismissal occurred despite the presence of the complainant's counsel. The court held that the Magistrate erred in dismissing the complaint in default when the counsel was present, as the counsel's presence should be considered as compliance with the requirement for prosecution. The court set aside the impugned order and restored the complaint to its original number, directing the Magistrate to proceed with the case in accordance with law. The application for leave to appeal was allowed, and the appeal was disposed of accordingly.
Headnote
A) Criminal Procedure Code - Dismissal of Complaint in Default - Section 256 CrPC - Restoration of Complaint - The Magistrate dismissed the complaint in default and acquitted the accused despite the presence of the complainant's counsel - Held that the order was not sustainable as the counsel's presence should have been considered as compliance - The High Court set aside the order and restored the complaint to its original number (Paras 1-3).
Issue of Consideration
Whether the dismissal of a complaint under Section 138 of the Negotiable Instruments Act, 1881 in default and acquittal of the accused, when the complainant's counsel was present, is sustainable in law.
Final Decision
The High Court allowed the application for leave to appeal, set aside the order dated 25.08.2008, and restored the complaint to its original number. The Magistrate was directed to proceed with the case in accordance with law.
Law Points
- Dismissal of complaint in default
- acquittal of accused without merits
- restoration of complaint
- Negotiable Instruments Act
- 1881 Section 138
- Criminal Procedure Code
- 1973 Section 256
