Case Note & Summary
The applicant, a partnership firm, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against respondent nos.2 and 3. The respondent no.2 is a proprietary concern of which respondent no.3 is the proprietor. The Magistrate issued process, and respondent no.3 appeared for herself and on behalf of respondent no.2. Subsequently, respondent no.3 remained absent and her exemption application was rejected on 23rd January 2012. A non-bailable warrant was issued but remained unexecuted. On 3rd January 2013, the complainant was present with his advocate, but the accused were absent. The Magistrate adjourned the matter to 22nd March 2013, observing that the complainant failed to take proper steps for securing the presence of the accused. On 22nd March 2013, the complainant was absent but his advocate was present. The Magistrate dismissed the complaint and acquitted the accused. The complainant appealed. The High Court granted leave and treated the application as an appeal. The court held that the Magistrate erred in acquitting the accused under Section 256 of the Code of Criminal Procedure, 1973, as the advocate was present and ready to proceed. The court set aside the acquittal and remanded the matter for fresh trial.
Headnote
A) Criminal Procedure - Acquittal for Default - Section 256 CrPC - Presence of Advocate - The Magistrate acquitted the accused under Section 256 CrPC when the complainant was absent but his advocate was present. The High Court held that the Magistrate erred in not considering that the advocate's presence was sufficient to proceed, and the acquittal was not justified. (Paras 8-10)
Issue of Consideration
Whether the Magistrate was justified in acquitting the accused under Section 256 of the Code of Criminal Procedure, 1973 when the complainant was absent but his advocate was present and ready to proceed.
Final Decision
Leave granted. Application treated as Memo of Appeal. Appeal allowed. Impugned order of acquittal set aside. Matter remanded to the trial court for fresh trial in accordance with law.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- acquittal for default of complainant
- presence of advocate
- duty of Magistrate to proceed under Section 256 CrPC
