Case Note & Summary
The appellant, Virendrakumar Ratanchand Banthia, was the original complainant in a case under Section 138 of the Negotiable Instruments Act, 1881, against respondent no.1, Azim Bradruddin Mukhari. The complaint was filed before the Judicial Magistrate First Class, Panvel, and the trial remained pending from 10th November 1997 to 16th February 2006. On 16th February 2006, the Magistrate passed an order of acquittal under Section 256 of the Code of Criminal Procedure, 1973, on the ground that the complainant was absent on that date and had been absent on the last three dates prior to that date. The complainant, aggrieved by the acquittal, obtained special leave from the High Court and filed the present appeal. The High Court examined the original record and the roznama of the case. It found that the matter was on board on 2nd February 2006, when the complainant was absent, and the case was adjourned to 16th February 2006. On 16th February 2006, the complainant was again absent, leading to the acquittal. However, the roznama did not show any other dates of absence prior to 2nd February 2006. The High Court held that the Magistrate's observation that the complainant was absent on three consecutive dates was factually incorrect. The High Court set aside the order of acquittal and restored the complaint to the file of the Magistrate for fresh disposal in accordance with law. The appeal was allowed.
Headnote
A) Criminal Procedure - Acquittal for Default - Section 256 Code of Criminal Procedure, 1973 - The Magistrate acquitted the accused under Section 256 CrPC on the ground that the complainant was absent on three consecutive dates. However, the High Court found from the roznama that the complainant was absent only on 2nd February 2006 and 16th February 2006, not on three dates. Held that the order was based on a factual error and could not be sustained. (Paras 4-6) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 Negotiable Instruments Act, 1881 - The complainant had filed a complaint under Section 138 NI Act. The trial was pending from 1997 to 2006. The Magistrate acquitted the accused under Section 256 CrPC due to the complainant's absence. The High Court set aside the acquittal and restored the complaint to the file of the Magistrate for fresh disposal. (Paras 1, 6)
Issue of Consideration
Whether the Magistrate's order of acquittal under Section 256 CrPC was valid when the complainant was absent only on the date of the order and one prior date, not three consecutive dates as recorded.
Final Decision
The appeal is allowed. The impugned order of acquittal dated 16th February 2006 passed by the Judicial Magistrate First Class, Panvel, is set aside. The complaint is restored to the file of the Magistrate for fresh disposal in accordance with law.
Law Points
- Section 256 CrPC requires complainant's absence on three consecutive dates before acquittal
- Roznama entries must be accurate
- Acquittal under Section 256 CrPC can be set aside if based on incorrect factual premise
