2022 (6) TMI 970 - HC - Indian Laws

Dishonor of Cheque - complaint was dismissed without taking cognizance - no notice was issued to complainant - insufficiency of funds - acquittal of the accused - rebuttal of presumption - HELD THAT - The present complaint is by a private party for the offence punishable under Section 138 of the Negotiable Instruments Act. The complainant is not a public servant. Therefore, presence of the complainant and his/her examination on oath is absolutely necessary before taking the complaint on file. Since the complainant was absent on 12.11.2021, he was called absent and the court finding that the complainant is not interested to proceed with the case further, had dismissed the complaint under Section 256 Cr.P.C. - The dismissal of the complaint can be made only after the same is taken on file. In the instant case, it appears that the learned Magistrate, even before issuing process to the accused, had dismissed the complaint for default viz., for the absence of the complaint. Section 256 Cr.P.C. is the only provision which deals with the dismissal of the complaint leading to the acquittal of the accused. As per the provision, it will be applicable only if the complaint is taken on file and summons is issued to the accused and on the date appointed for the appearance of the accused, on his/her appearance, if the complainant does not appear, the Magistrate shall acquit the accused unless, if, for some reason, he thinks proper to adjourn the hearing of the case to some other date - The object of the provision is that the court should take serious note of the absence of the person who approached the court to set the law in motion, when the accused person makes himself present before the court for enquiry. The complaint has been axed even before it was numbered and taking on file. In the opinion of this court, the Trial Court has not exercised its discretion judicially and fairly the order passed misconstruing the scope of Section 256 is illegal and the impugned order is liable to be set aside and accordingly, it is set aside. This court is also of the view that normally, when an order is passed under Section 256 Cr.P.C., only an Appeal will lie. Now, that, an illegal order has been passed even prior to taking of cognizance, the impugned order is set aside invoking the inherent powers of this court under Section 482 Cr.P.C. Further, the impugned order being one passed at pre-cognizance stage, this court is of the view that no notice is required to be sent to the respondent/proposed accused. The Criminal Original Petition is disposed off.

Summary

Issues Involved:
1. Dismissal of private complaint under Section 256 Cr.P.C.
2. Applicability of Section 256 Cr.P.C. at pre-cognizance stage.
3. Requirement of notice to the complainant before dismissal.
4. Judicial discretion and fairness in exercising Section 256 Cr.P.C.

Issue-wise Detailed Analysis:

1. Dismissal of private complaint under Section 256 Cr.P.C.:
The petitioner challenged the dismissal of his private complaint by the Judicial Magistrate, Avinashi, under Section 256 Cr.P.C. The complaint, filed for an offence punishable under Section 138 of the Negotiable Instruments Act, was dismissed due to the complainant's absence. The court noted that the dismissal was premature as the complaint had not yet been taken on file or summons issued to the accused.

2. Applicability of Section 256 Cr.P.C. at pre-cognizance stage:
The judgment emphasized that Section 256 Cr.P.C. applies only after the complaint is taken on file and summons issued to the accused. The provision allows for the dismissal of a complaint if the complainant is absent on the appointed date for the appearance of the accused. The court cited several precedents, including *S. Sankar v. C.V. Pasupathi* and *K. Meenakshi vs. S. Mohana*, which clarified that dismissal under Section 256 Cr.P.C. can only occur post-cognizance and after issuing summons.

3. Requirement of notice to the complainant before dismissal:
The judgment highlighted that no notice was issued to the complainant before the dismissal of the complaint, which was a significant procedural lapse. The court referenced the decision in *O.C. Periyasamy vs. D. Venkatesan @ Ravi*, which stated that while there is no specific provision for dismissing a complaint for the complainant's absence before recording the sworn statement, the court should not wait indefinitely for the complainant's appearance. However, in this case, the dismissal occurred without any notice during the COVID-19 pandemic, further complicating the issue.

4. Judicial discretion and fairness in exercising Section 256 Cr.P.C.:
The court stressed that judicial discretion must be exercised judiciously and fairly, without impairing the administration of criminal justice. The dismissal of the complaint without taking it on file and without issuing summons was deemed an improper exercise of discretion. The judgment cited *Associated Cement Co. Ltd. vs. Keshavanand*, emphasizing that the court must consider whether the complainant's presence is essential for the case's progress and whether the situation justifies adjournment.

Conclusion:
The court concluded that the dismissal of the complaint under Section 256 Cr.P.C. was illegal as it was done at a pre-cognizance stage without issuing summons and without giving notice to the complainant. The impugned order was set aside, and the petitioner was directed to present himself before the court within four weeks for the recording of his sworn statement and for the complaint to be taken on file. The judgment underscored the necessity of adhering to procedural requirements and exercising judicial discretion fairly in criminal proceedings.