Case Note & Summary
The appellant, The Aurangabad People's Cooperative Bank Ltd., filed a criminal appeal challenging the order dated 4-9-2010 passed by the learned 3rd Judicial Magistrate (F.C.), Aurangabad, in S.C.C. No. 9001 of 2004. The Magistrate had dismissed the complaint in default and acquitted the accused (respondent) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The appellant bank had advanced a loan of Rs. 25,000/- to the respondent on 8-5-2003 for his daughter's marriage. The respondent failed to repay the loan despite repeated demands and issued a cheque which was dishonoured. The bank filed a complaint under Section 138 of the NI Act. On the date of hearing, the authorised officer of the bank was absent, leading to dismissal of the complaint in default. The bank contended that the absence was due to a miscommunication regarding the date of hearing. The High Court found that the bank had shown sufficient cause for non-appearance and that the dismissal was not justified. The court set aside the impugned order, restored the complaint to its original number, and directed the Magistrate to proceed with the trial and dispose of the complaint expeditiously, preferably within six months from the date of receipt of the order. The appeal was allowed.
Headnote
A) Criminal Procedure Code - Dismissal of Complaint in Default - Restoration - The Magistrate dismissed the complaint under Section 138 of the Negotiable Instruments Act, 1881, in default due to the absence of the complainant's authorised officer. The High Court held that the absence was due to a miscommunication regarding the date, which constituted sufficient cause for non-appearance. The impugned order was set aside and the complaint was restored to its original number. (Paras 1-10) B) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Complaint - The appellant bank had advanced a loan to the respondent, who issued a cheque that was dishonoured. The complaint was dismissed in default. The High Court restored the complaint, directing the Magistrate to proceed with the trial and dispose of it expeditiously. (Paras 6-10)
Issue of Consideration
Whether the learned Magistrate was justified in dismissing the complaint in default and acquitting the accused when the complainant's authorised officer was absent due to a miscommunication regarding the date of hearing.
Final Decision
The appeal is allowed. The impugned order dated 4-9-2010 passed by the learned 3rd Judicial Magistrate (F.C.), Aurangabad, in S.C.C. No. 9001 of 2004 is set aside. The complaint is restored to its original number. The learned Magistrate is directed to proceed with the trial and dispose of the complaint expeditiously, preferably within six months from the date of receipt of the order.
Law Points
- Dismissal of complaint in default
- restoration of complaint
- Section 138 Negotiable Instruments Act
- 1881
- absence of complainant
- sufficient cause for non-appearance
