Case Note & Summary
The applicant, Agasti Sarv Seva Sangh, filed a criminal complaint against the respondent, Rohidas Dharma Rathod, alleging offences under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code, 1860. The Magistrate ordered process only for the offence under Section 138 of the Negotiable Instruments Act. The complaint remained pending for about five years as the respondent's presence could not be secured despite issuance of summons and warrants. On 31 August 2013, the learned Magistrate dismissed the complaint in default under a 'Special Drive' order, noting that the case was old and the complainant had failed to secure the accused's presence. The complainant, through its manager, filed a criminal revision application before the Bombay High Court challenging the dismissal. The High Court heard both sides. The court examined the order and found that the Magistrate had dismissed the complaint under Section 256 of the Code of Criminal Procedure, 1973, which permits dismissal only when the accused is present and the complainant is absent. In this case, the accused was absent, and the complainant was present. Therefore, the Magistrate acted without jurisdiction. The High Court allowed the revision, set aside the dismissal order, and restored the complaint to its original number, directing the Magistrate to proceed in accordance with law.
Headnote
A) Criminal Procedure - Dismissal of Complaint for Default - Section 256 Code of Criminal Procedure, 1973 - The Magistrate dismissed the complaint for default under Section 256 CrPC even though the accused was absent and the complainant was present. The High Court held that Section 256 CrPC applies only when the accused is present and the complainant is absent; it cannot be invoked when the accused is absent. The dismissal was set aside and the complaint was restored. (Paras 4-6) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 Negotiable Instruments Act, 1881 - The complaint alleged an offence under Section 138 of the Negotiable Instruments Act. The Magistrate had issued process only for that offence. The complaint was pending for five years as the accused's presence could not be secured. The High Court restored the complaint, noting that the Magistrate had no power to dismiss it for default in the absence of the accused. (Paras 3, 6)
Issue of Consideration
Whether a Magistrate can dismiss a complaint for default under Section 256 of the Code of Criminal Procedure, 1973 when the accused is not present and the complainant is present.
Final Decision
The revision application is allowed. The order dated 31.08.2013 passed by the learned Judicial Magistrate First Class, Akole, dismissing the complaint for default is set aside. The complaint is restored to its original number. The learned Magistrate is directed to proceed with the complaint in accordance with law.
Law Points
- Dismissal of complaint for default under Section 256 CrPC requires presence of accused
- Magistrate cannot dismiss complaint for default when accused is absent
- Revision lies against dismissal order
- Complaint can be restored if dismissed without jurisdiction
