Case Note & Summary
The appellant, Mahesh Rameshchandra Sharma, filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against respondent No.1, Rahul K. Durugkar, before the Judicial Magistrate First Class, Nagpur. The complaint was registered as Criminal Complaint Case No. 10677/2010. The Magistrate dismissed the complaint and acquitted the accused under Section 256 of the Criminal Procedure Code, 1973 (CrPC) on the ground that the complainant did not appear on the date of hearing. The appellant challenged this order before the Bombay High Court, Nagpur Bench. The High Court noted that Section 256 CrPC provides that if the complainant does not appear, the Magistrate shall acquit the accused unless he thinks it proper to adjourn. However, the proviso to Section 256 states that where the complainant is represented by a pleader, the Magistrate may dispense with his personal attendance and proceed with the case. In the present case, the appellant was represented by a pleader, but the Magistrate did not consider this fact and dismissed the complaint. The High Court relied on the Supreme Court judgment in Associated Cement Co. Ltd. v. Keshvanand, 1998(1) Cri.L.J. 856, which held that the Magistrate must consider whether the personal attendance of the complainant is necessary and whether the pleader can represent him. The High Court found that the Magistrate had not applied his mind to the proviso and had mechanically dismissed the complaint. Consequently, the High Court allowed the appeal, set aside the order of dismissal, and restored the complaint to the file of the Magistrate for fresh disposal in accordance with law. The parties were directed to appear before the Magistrate on 14th April 2014.
Headnote
A) Criminal Procedure Code - Dismissal of Complaint for Non-Appearance - Section 256 CrPC - The Magistrate dismissed the complaint under Section 256 CrPC for non-appearance of the complainant, despite the complainant being represented by a pleader. The High Court held that the Magistrate failed to consider the proviso to Section 256 CrPC, which allows the Magistrate to dispense with the personal attendance of the complainant if represented by a pleader. The order of dismissal was set aside and the complaint was restored. (Paras 3-5)
Issue of Consideration
Whether the Magistrate was justified in dismissing the complaint under Section 256 CrPC for non-appearance of the complainant when the complainant was represented by a pleader.
Final Decision
Appeal allowed. Order dated 11th March 2014 passed by Judicial Magistrate First Class, Nagpur in Criminal Complaint Case No.10677/2010 is set aside. Complaint is restored to its original number. Parties to appear before the Magistrate on 14th April 2014.
Law Points
- Section 256 CrPC requires Magistrate to consider representation by pleader and necessity of personal attendance before dismissing complaint
- Section 138 Negotiable Instruments Act
- 1881
