Case Note & Summary
The appellant, original complainant, filed a complaint against the respondent No.2 (accused) for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The complaint was pending before the Metropolitan Magistrate, 28th Court, Esplanade. On 31/01/2014, the Magistrate passed an order of acquittal under Section 256 of the Code of Criminal Procedure, 1973 (CrPC) because the complainant was absent when the case was called out and no steps had been taken since long. The order stated: 'Complainant absent when called out. No steps taken since long. Hence case dismissed for want of complainant u/sec.256 of the Cr.P.C. Accused is hereby acquitted for the offence punishable u/sec.138 of the Negotiable Instruments Act, 1881.' Aggrieved by this acquittal, the complainant filed an application for leave to appeal before the Bombay High Court. The High Court granted leave and treated the application as a memo of appeal. The court heard the counsel for the complainant and the accused. The complainant's counsel argued that the impugned order was not just and proper, as the complainant had a valid reason for absence and the Magistrate did not apply judicial mind. The court noted that the order was mechanical and did not reflect any application of mind. The court observed that the Magistrate did not consider whether the presence of the complainant was essential on that day, nor did he record any reasons for dismissing the complaint. The court held that such an order is illegal and cannot be sustained. The court set aside the acquittal and remanded the case back to the Magistrate for fresh disposal in accordance with law. The court directed the parties to appear before the Magistrate on a specified date.
Headnote
A) Criminal Procedure Code - Acquittal under Section 256 CrPC - Dismissal for Non-Appearance - The Magistrate must apply judicial mind and record reasons before dismissing a complaint for non-appearance; mechanical dismissal without considering the complainant's explanation or the stage of the case is illegal. Held that the order was passed without application of mind and is set aside (Paras 8-10). B) Negotiable Instruments Act - Section 138 - Dishonour of Cheque - Appeal against Acquittal - The complainant's absence on a single date when the accused was present does not automatically warrant dismissal under Section 256 CrPC; the court must consider whether the presence of the complainant was essential. Held that the acquittal was improper and the case is remanded for fresh disposal (Paras 8-10).
Issue of Consideration
Whether the Magistrate's order of acquittal under Section 256 CrPC for non-appearance of the complainant was legally sustainable when the complainant had a valid reason for absence and the order lacked application of judicial mind.
Final Decision
The High Court allowed the appeal, set aside the impugned order of acquittal dated 31/01/2014, and remanded the case back to the Metropolitan Magistrate for fresh disposal in accordance with law. The parties were directed to appear before the Magistrate on 11/04/2016 at 11:00 a.m.
Law Points
- Section 256 CrPC requires application of judicial mind
- not mechanical dismissal
- complainant's absence must be considered with reasons
- acquittal under Section 256 CrPC is appealable with leave
- Section 138 NI Act complaint dismissal must consider if presence is essential
