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
Case Details
2015 LawText (BOM) (01) 155
Criminal Application No.359 of 2013 in Criminal Appeal No....... of 2015
Mr.Jatin P. Shah for applicant, Mrs.S.V.Gajare APP for Respondent State
Govindji Trikamdas and Co
The State of Maharashtra & ors
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal appeal against acquittal under Section 138 of Negotiable Instruments Act, 1881
Remedy Sought
Leave to file appeal against acquittal and setting aside of acquittal order
Filing Reason
The Magistrate acquitted the accused under Section 256 CrPC when the complainant was absent but his advocate was present
Previous Decisions
The Magistrate dismissed the complaint and acquitted the accused on 22nd March 2013
Issues
Whether the Magistrate was justified in acquitting the accused under Section 256 CrPC when the complainant was absent but his advocate was present
Submissions/Arguments
The complainant's advocate was present and ready to proceed, so the Magistrate should not have acquitted the accused
Ratio Decidendi
The presence of the complainant's advocate is sufficient to proceed under Section 256 CrPC, and the Magistrate erred in acquitting the accused for default of appearance when the advocate was present and ready to proceed.
Judgment Excerpts
The learned Magistrate then adjourned the matter to 22nd March 2013 with the following observation: 'complainant failed to take proper steps for securing presence of accused'
On 22nd March 2013, the Magistrate passed an order of acquittal which reads as under: 'complainant absent. His advocate present. Accused absent. Complaint is dismissed and accused is acquitted'.
Procedural History
Complaint filed under Section 138 NI Act. Process issued. Accused appeared. Subsequently accused absent. Non-bailable warrant issued but unexecuted. On 3rd January 2013, complainant present with advocate, accused absent; matter adjourned to 22nd March 2013. On 22nd March 2013, complainant absent, advocate present; Magistrate dismissed complaint and acquitted accused. Complainant filed Criminal Application for leave to appeal. High Court granted leave and heard appeal.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 256
