2018 (9) TMI 838 - HC - Indian Laws

Whether the complaint could have been dismissed for want of prosecution, evidently the petitioner was never issued notice in this case and the notice of appearance was only issued to General Power of Attorney? Held that - It has to be borne in mind that normally no party would desist or stop from pursuing a complaint involving dishonour of cheque till proved otherwise. That apart, it is always in the interest that the cases should be adjudicated on merits. In my opinion, the learned trial Magistrate has adopted a very strict and unjust attitude resulting in failure of justice - There is yet another reason why the order impugned herein cannot withstand judicial scrutiny and the same is that the learned Magistrate while dismissing the complaint for default has not borne in mind the provisions of Section 256 of the Cr.P.C., which specifically deals with nonappearance or death of the complainant. Revision Petition allowed.

Summary

Issues:
Dismissal of complaint for want of prosecution without proper notice to the complainant and failure to consider provisions of Section 256 of the Cr.P.C.

Analysis:

1. Dismissal for want of prosecution: The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque. The complaint was dismissed for want of prosecution as the attorney of the complainant failed to appear on multiple occasions. The judge noted that the complainant was never issued notice directly, and the notice of appearance was only sent to the General Power of Attorney. The judge criticized the strict and unjust approach of the trial Magistrate in dismissing the complaint without proper consideration.

2. Failure to consider Section 256 of the Cr.P.C: The judgment highlighted that the learned Magistrate failed to consider the provisions of Section 256 of the Criminal Procedure Code (Cr.P.C). Section 256 deals with the non-appearance or death of the complainant and provides guidelines for such situations. The judge emphasized that the Magistrate should have followed the provisions of Section 256 before dismissing the complaint for default. The judgment referenced a previous case to support the applicability of Section 256 to complaints filed under the Negotiable Instruments Act.

3. Judicial Scrutiny and Setting Aside the Order: The judge, after detailed analysis, concluded that the order of dismissal for want of prosecution could not withstand judicial scrutiny. The judgment allowed the revision petition, setting aside the impugned order dated 23.04.2018. The petitioner was directed to appear before the trial Magistrate on a specified date. However, the judgment also clarified that if the complainant fails to pursue the complaint or is absent, the Magistrate is free to pass appropriate orders as per the law.

In summary, the judgment focused on the procedural irregularities in dismissing the complaint for want of prosecution without proper notice to the complainant and the failure to consider the relevant provisions of the Cr.P.C. The judge emphasized the importance of adjudicating cases on their merits and set aside the impugned order based on the lack of adherence to procedural requirements and legal provisions.