Case Note & Summary
The appellant, M/s Kothari Enterprises, filed a criminal complaint against M/s Dharendra Agro Food Industries Ltd. and its director, A.J. Shah, for an offence under the Negotiable Instruments Act, 1881. The Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai, issued summons and recorded the plea of the accused. On 14th June 2000, when the case was called for hearing, the complainant and his advocate were absent. The Magistrate dismissed the case under Section 256 of the Code of Criminal Procedure, 1973 (CrPC) and acquitted the accused. The complainant appealed under Section 378(4) CrPC before the Bombay High Court. The High Court examined Section 256 CrPC, which mandates that if the complainant does not appear on the day appointed for the appearance of the accused, the Magistrate shall acquit the accused unless he thinks it proper to adjourn the hearing. However, the proviso to Section 256(1) states that where the complainant is represented by a pleader, the Magistrate may dispense with his attendance and proceed with the case. The High Court noted that the Magistrate's order did not indicate any consideration of the proviso or any reason for not adjourning the case. The court held that the Magistrate must apply his mind to the proviso and record reasons for not adjourning. Since the Magistrate failed to do so, the acquittal was set aside and the case was remanded to the Magistrate for fresh decision on merits, in accordance with law. The appeal was allowed.
Headnote
A) Criminal Procedure - Acquittal for Non-Appearance of Complainant - Section 256 CrPC - The Magistrate acquitted the accused under Section 256 CrPC solely because the complainant and his advocate were absent, without considering the proviso which permits the Magistrate to dispense with the complainant's attendance if represented by a pleader or if personal attendance is unnecessary - The High Court held that the Magistrate must apply his mind to the proviso and record reasons for not adjourning the case - The acquittal was set aside and the matter remanded for fresh decision on merits (Paras 1-6).
Issue of Consideration
Whether the Magistrate was justified in acquitting the accused under Section 256 CrPC when the complainant and his advocate were absent, without considering the proviso to Section 256(1) CrPC which allows the Magistrate to dispense with the complainant's attendance if represented by a pleader.
Final Decision
Appeal allowed. Impugned order of acquittal dated 14th June 2000 set aside. Case remanded to the Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai for fresh decision on merits in accordance with law.
Law Points
- Section 256 CrPC requires Magistrate to consider whether to adjourn before acquitting for non-appearance
- Magistrate must record reasons for not adjourning
- acquittal under Section 256 CrPC is not automatic
