Case Note & Summary
The applicant, M/s Umedmal Bhikulal, a registered partnership firm through its partner Smt. Prema Kantichand Golecha, filed a criminal application in the High Court of Judicature at Bombay, Bench at Aurangabad, challenging the order of the Judicial Magistrate, First Class dismissing their complaint under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed on 3.3.2015 and registered on 9.3.2015. On 15.4.2015, the complainant filed an application for adjournment due to some difficulty. The Magistrate, however, observed that the complaint was filed on 5.2.2015 and proceeded to reject the adjournment application and dismiss the complaint. The High Court noted that the dismissal occurred before the issue of process, and thus the stage of Section 256 of the Code of Criminal Procedure, 1973 (which deals with non-appearance of complainant after summons) had not been reached. The court found it unreasonable for the trial court not to give some breathing time to the complainant, especially when an adjournment application was filed. The High Court clarified that the effect of the order was that of a discharge, not an acquittal, and a fresh complaint would not be barred. However, considering the circumstances, the court set aside the dismissal order and restored the complaint to the file of the trial court, directing the Magistrate to proceed from the stage of verification and issue of process. The court also noted that since the accused had not been heard at the pre-process stage, it was not necessary to serve notice on the respondent-accused. The application was allowed accordingly.
Headnote
A) Criminal Procedure - Complaint Dismissal - Pre-Process Stage - Opportunity of Verification - Section 256, Code of Criminal Procedure, 1973 - The Magistrate dismissed the complaint under Section 138 of the Negotiable Instruments Act, 1881 before issuing process, without giving the complainant an opportunity to record verification. The High Court held that the stage of Section 256 CrPC had not been reached as summons had not been issued. The dismissal was unreasonable and the Magistrate should have granted some breathing time. The order was set aside and the complaint was restored. (Paras 1-3)
Issue of Consideration
Whether the Magistrate should have given an opportunity to the complainant to record verification before dismissing the complaint under Section 138 of the Negotiable Instruments Act, 1881 for non-prosecution at the pre-process stage.
Final Decision
The High Court allowed the application, set aside the order of dismissal, and restored the complaint to the file of the trial court. The Magistrate was directed to proceed from the stage of verification and issue of process.
Law Points
- Opportunity for verification must be given before dismissing complaint under Section 138 NI Act
- Section 256 CrPC not applicable before issue of process
- Dismissal before process amounts to discharge not acquittal
