Case Note & Summary
The appellant (original complainant) filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code, 1860 against the respondent (original accused) for dishonour of a cheque of Rs. 90,000/- issued towards repayment of a loan. The complaint was initially filed as STCC No. 4886/2003 before the Judicial Magistrate (F.C.), Latur, and later transferred to Renapur court as STCC No. 241/2008. On 30th June 2010, the learned Magistrate dismissed the complaint in default and discharged the accused because the complainant was absent. The complainant contended that he was absent because the notice sent by the court mentioned the date of hearing as 1st July 2010 instead of 30th June 2010. The High Court found that the complainant had sufficient cause for non-appearance and that the dismissal was not justified. The court allowed the appeal, 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.
Headnote
A) Criminal Procedure - Dismissal of Complaint in Default - Restoration - The complainant's absence was due to a wrong date mentioned in the notice issued by the court, which constituted sufficient cause for non-appearance - The court held that dismissal in default and discharge of accused was not justified and set aside the order - Negotiable Instruments Act, 1881, Section 138; Indian Penal Code, 1860, Section 420 (Paras 5-10).
Issue of Consideration
Whether the dismissal of the complaint in default and consequent discharge of the accused was justified when the complainant's absence was due to a wrong date mentioned in the notice.
Final Decision
The appeal is allowed. The impugned order dated 30th June 2010 passed by the learned Judicial Magistrate (F.C.), Renapur below Exhibit 1 in STCC No. 241/2008 is set aside. The complaint is restored to its original number. The learned Magistrate is directed to proceed with the case in accordance with law.
Law Points
- Dismissal of complaint in default
- restoration of complaint
- condonation of delay
- Section 138 Negotiable Instruments Act
- 1881
- Section 420 Indian Penal Code
- inherent powers of court
- procedural fairness
Case Details
2012 LawText (BOM) (09) 4
Criminal Application No. 1941 of 2012 (Converted into Criminal Appeal No. 587 of 2012)
Mr. S.T. Veer for the applicant, Mr. Hiraji Gaikwad for the respondent
Angad s/o. Nagnathrao Kathale
Kishan s/o. Baburao Suryawanshi
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Nature of Litigation
Criminal appeal against order dismissing complaint in default and discharging accused in a cheque dishonour case.
Remedy Sought
The appellant sought setting aside of the order dated 30th June 2010 dismissing the complaint in default and restoration of the complaint.
Filing Reason
The complainant's absence on the date of hearing was due to a wrong date mentioned in the court notice, leading to dismissal of the complaint.
Previous Decisions
The complaint was dismissed in default and the accused was discharged by the Judicial Magistrate (F.C.), Renapur on 30th June 2010.
Issues
Whether the dismissal of the complaint in default was justified when the complainant's absence was due to a wrong date in the court notice.
Whether the order discharging the accused should be set aside.
Submissions/Arguments
The appellant argued that he was absent because the notice from the court mentioned the date as 1st July 2010 instead of 30th June 2010.
The respondent opposed the appeal, but the court found sufficient cause for non-appearance.
Ratio Decidendi
A complaint should not be dismissed in default if the complainant's absence is due to a mistake in the court's notice, as it constitutes sufficient cause for non-appearance. The dismissal and consequent discharge of the accused are not justified in such circumstances.
Judgment Excerpts
The appellant (original complainant) is a consumer of Osmanabad Janata Sahakari Bank Ltd., Branch Latur, whereas the respondent (original accused) is working as Clerk in the said Bank...
However, the said cheque was dishonoured and was returned unpaid with the endorsement 'funds insufficient'...
Hence, complainant issued legal notice to the accused on 19-9-2003...
The complainant was absent because the notice sent by the court mentioned the date of hearing as 1st July 2010 instead of 30th June 2010.
Procedural History
The complaint was initially filed as STCC No. 4886/2003 before the Judicial Magistrate (F.C.), Latur. It was later transferred to Renapur court and renumbered as STCC No. 241/2008. On 30th June 2010, the Magistrate dismissed the complaint in default and discharged the accused. The appellant filed Criminal Application No. 1941 of 2012, which was converted into Criminal Appeal No. 587 of 2012. The High Court heard the appeal and delivered judgment on 28th September 2012.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Indian Penal Code, 1860: 420
