Case Note & Summary
The appellant, Prakash Budha Balbudhe, filed a complaint under Sections 138 and 142 of the Negotiable Instruments Act, 1881 against the respondent, Dinesh Baburao Madavi, concerning a cheque of Rs. 3,20,000. The Judicial Magistrate First Class, Arjuni (Morgaon), issued process. The respondent initially appeared and furnished bail but later remained absent. The appellant sought issuance of bailable warrant and later non-bailable warrant, paying process fees, but the court did not issue the non-bailable warrant due to non-receipt of police report. The case was transferred to a morning court. On 7 June 2011, when the matter was called, the complainant and his advocate were absent, leading to dismissal of the complaint under Section 256 of the Code of Criminal Procedure, 1973. The appellant filed an application for leave to appeal against this dismissal. The High Court, per Justice U. V. Bakre, observed that the dismissal was technical and not on merits. Considering that the dismissal was under Section 256 CrPC for default, leave to appeal was granted. The appeal was admitted and taken up for final hearing with consent. The court noted that the complainant had been diligent in seeking warrants and paying fees, and the absence on the date of dismissal was not deliberate. The court set aside the dismissal order and restored the complaint to its original number, directing the trial court to proceed with the matter on merits and dispose it expeditiously.
Headnote
A) Criminal Procedure - Dismissal for Default - Section 256 CrPC - Leave to Appeal - Order dismissing complaint under Section 138 NI Act for default under Section 256 CrPC is a technical dismissal not on merits - Leave to appeal granted to allow complainant to prosecute the matter on merits (Paras 2-5).
Issue of Consideration
Whether leave to appeal should be granted against an order dismissing a complaint under Section 138 of the Negotiable Instruments Act for default under Section 256 of the Code of Criminal Procedure due to absence of complainant and advocate.
Final Decision
Leave to appeal granted. Appeal admitted and taken up for final hearing. Impugned order set aside. Complaint restored to its original number. Trial court directed to proceed with the matter on merits and dispose it expeditiously.
Law Points
- Leave to appeal granted against technical dismissal for default under Section 256 CrPC
- complaint under Section 138 NI Act restored
