2008 (8) TMI 984 - HC - Indian Laws

Dishonour of cheque - requirement of presence or absence of the complainant - Whether procedure of private complaint under the India Penal Code or the Negotiable Instruments Act is same according to sec 256 of CrPC? - Powers of Magistrate u/s 256 to dispense with the personal attendance of the complainant. HELD THAT - The perusal of the Section 256 reveals that two constraints are imposed on the Court for exercising the power under this Section. Firstly, if the Court thinks in a situation, it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Secondly, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with the personal attendance of the complainant and proceed further with the matter. Presence of the complainant, on that day was quite un-necessary, then resorting to the step of axing down the complaint may not be a proper exercise of the power, envisaged in the Section as held in Associated Cement Company Ltd. v. Keshvanand 1997 (12) TMI 629 - SUPREME COURT . Therefore, the discretion u/s 256 has to be exercised fairly and judiciously without impairing the cause of administration of criminal justice, which should be spelt out from the order passed by the Court. Though the Procedure of private complaint u/s 138 of the Act largely differs from a private complaint in respect of the offences under the Indian Penal Code. But Section 256 of the CrPC makes no difference whether it is a case under, the IPC or the present Act. On going through the impugned order it transpires that the learned trial Court did not apply its mind to the provisions of Section 256, it has taken a conscious decision with respect to the presence or absence of the complainant on that day when it dismissed the complaint and acquitted the accused. In absence of it the impugned order is unsustainable and is accordingly set aside. Consequently, both the complaints referred above be now restored and re-registered to its original number by the learned trial Court and proceed with the matter in accordance with law. The parties are directed to appear before the learned trial Court. Both the appeals are disposed of accordingly.

Summary

Issues:
Appeal against dismissal of complaints under Section 138 of the Negotiable Instrument Act due to complainant's absence.

Analysis:
1. Background: The appeals arose from orders dismissing complaints under Section 138 of the Negotiable Instrument Act due to the complainant's absence. The trial court acquitted the respondents for lack of appearance by the complainant.

2. Facts: The appellant filed complaints against the respondents, but the respondents' presence was secured after three years. Despite repeated adjournments, the complainant and his witnesses failed to appear on the specified dates.

3. Legal Provisions: Section 256 of the Code of Criminal Procedure was cited, emphasizing the Magistrate's discretion in acquitting the accused if the complainant fails to appear, subject to certain conditions. The court must consider the necessity of the complainant's presence for the case's progress.

4. Court's Observations: The court noted discrepancies in the appellant's explanation for absence and found the trial court had not properly applied Section 256 before dismissing the complaints. The court emphasized the need for fair and judicious exercise of discretion by the Magistrate.

5. Decision: The High Court set aside the trial court's orders, directing the complaints to be restored and re-registered. The parties were instructed to appear before the trial court, with specific directions for the complainant to file the process fee and ensure witness presence.

6. Conclusion: The High Court's judgment highlighted the importance of the Magistrate's careful consideration under Section 256 before acquitting the accused due to the complainant's absence. The court stressed the need for a fair and just exercise of discretion to uphold the cause of criminal justice.

By analyzing the legal provisions and the court's observations, the High Court decision provided clarity on the proper application of the law in cases involving complaints under the Negotiable Instrument Act.