2017 (6) TMI 1322

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..... C can be passed only after the process was issued and the accused had appeared in the matter but the complainant failed to appear on the date listed for hearing of the case. In the instant case respondent/accused has not served nor appeared before the Court. So also the case was not listed for hearing. The case was lying at the stage of the service of the summons. In default of taking steps at the most the complaint could have been dismissed by exercising the powers under section 204(4) of the Code of Criminal Procedure not in exercise of powers under section 256 of the Code of Criminal Procedure. Therefore, the impugned orders is not sustainable in law. Since the impugned order could not have been passed in exercise of the powers unde .....

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..... ded to accept the service by assigning the reason that there is discrepancy in his name mentioned in the notice though the notice was earlier served upon him in same name and address. 4. In order to appreciate the submissions advanced, I have perused record and proceeding. Perusal of the record reveals that the complaint had filed complaint under section 138 of the Negotiable Instrument Act. On due consideration of the fact pleaded in the complaint and documents relied, in support of the complaint the learned Magistrate has passed order to issue process under section 138 of the Negotiable Instrument Act against the accused/respondent. The order was passed on 01.10.2014. The complainant has paid the process fees. Later on notice was also .....

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..... lainant failed to appear on the date listed for hearing of the case. In the instant case respondent/accused has not served nor appeared before the Court. So also the case was not listed for hearing. The case was lying at the stage of the service of the summons. In default of taking steps at the most the complaint could have been dismissed by exercising the powers under section 204(4) of the Code of Criminal Procedure not in exercise of powers under section 256 of the Code of Criminal Procedure. Therefore, the impugned orders is not sustainable in law. Since the impugned order could not have been passed in exercise of the powers under section 256 of the Code of Criminal Procedure the order deserves to be set-aside. In this view the app .....

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