Case Note & Summary
The applicant (original complainant) filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent (original accused) for dishonour of a cheque issued for repayment of a loan of Rs.5 lakhs. The Judicial Magistrate, First Class, Jalgaon, dismissed the complaint in default under Section 256 of the Code of Criminal Procedure due to the absence of the complainant and his advocate, resulting in acquittal of the accused. The complainant sought leave to appeal against this order. The High Court observed that the dismissal was technical and granted leave, treating the application as an appeal. The appeal was admitted and taken up for final hearing with consent. The court set aside the impugned order and restored the complaint to its original number, directing the trial court to dispose it of expeditiously.
Headnote
A) Criminal Procedure - Dismissal of Complaint in Default - Section 256 CrPC - Leave to Appeal - Dismissal of complaint due to absence of complainant and advocate is technical, hence leave to appeal granted and application treated as appeal (Paras 3-4).
Issue of Consideration
Whether leave to appeal should be granted against dismissal of complaint in default under Section 256 CrPC leading to acquittal under Section 138 NI Act
Final Decision
Leave to appeal granted; application treated as appeal; appeal allowed; impugned order set aside; complaint restored to original number; trial court directed to dispose of complaint expeditiously.
Law Points
- Section 256 CrPC dismissal is technical
- leave to appeal granted
- appeal treated as admitted
Case Details
2011 LawText (BOM) (05) 3
Criminal Appeal No. 256 of 2011 (Criminal Application No. 4540 of 2010)
Shri R.J. Kataria for applicant, Shri S.B. Yawalkar for respondent
Shri Pratap s/o Gopaldas Talreja
Shri Bhagwandas s/o Jehumal Matani
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Nature of Litigation
Criminal appeal against dismissal of complaint under Section 138 NI Act due to absence of complainant
Remedy Sought
Leave to appeal against order dismissing complaint in default and acquitting accused
Filing Reason
Complainant and his advocate were absent on date of hearing, leading to dismissal under Section 256 CrPC
Previous Decisions
Judicial Magistrate, First Class, Jalgaon dismissed Summary Criminal Case No. 579 of 2004 in default on 14.10.2010
Issues
Whether the dismissal of complaint under Section 256 CrPC was justified
Whether leave to appeal should be granted
Submissions/Arguments
Applicant argued that dismissal was technical and sought restoration
Respondent opposed the application
Ratio Decidendi
Dismissal of complaint under Section 256 CrPC due to absence of complainant and advocate is technical, and leave to appeal should be granted to restore the complaint.
Judgment Excerpts
Since it appears from the impugned order itself that the complaint filed by the applicant herein (original complainant) came to be dismissed in default due to absence of the complainant and his Advocate under Section 256 of the Code of Criminal Procedure resulting into acquittal of the respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, it is apparent that the said dismissal is technical, and therefore, leave to file appeal is granted and present application is treated as appeal.
Procedural History
Complainant filed Summary Criminal Case No. 579 of 2004 under Section 138 NI Act. On 14.10.2010, Judicial Magistrate, First Class, Jalgaon dismissed complaint in default under Section 256 CrPC and acquitted accused. Complainant filed Criminal Application No. 4540 of 2010 seeking leave to appeal. High Court granted leave, treated application as appeal, admitted it, and finally disposed it on 02.05.2011.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 256
- Negotiable Instruments Act, 1881: 138
