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TMI Blog2007 (4) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... inghal, learned Counsel for the revisionist the resume of facts are referred to below. 2. Respondent No. 2, Sanjay Kumar Dixit filed Complaint Case No. 282/09 of 2002 in the court of Additional Chief Judicial Magistrate, 1st Muzaffarnagar under Section 138 of the N.I. Act, hereinafter referred to as the N.I. Act, against Sugandha Steel, Vinay Kumar (revisionist), Ravindra Kumar and Sri Ravi Khanna on 25.1.2002. The allegations in the complaint were that the Sugandha Steel was a registered firm of which Vinay Kumar, Ravindra Kumar and Ravi Khanna were partners and proprietors. They use to run and supervise the said firm. The accused persons, on various dates and at different times had taken loan from the complainant Sanjay Kumar Dixit for the satisfaction of which they had issued cheque No. 0016794 of Union Bank of India from Account No. CC-131 of an amount of Rs. four lacs seventy thousand (₹ 470000/-) on 20.10.2001. The aforesaid cheque was deposited by the complainant on 12.12.2001 in Ganga Markentile Urban Co-operative Bank Limited, Muzaffarnagar in his account A-C/1314 on 12.12.2001 for encashment. The aforesaid cheque was returned on 13.12.2001 to the complainant with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial court with a direction that it should proceed further in accordance with law which order is impugned in the present revision. 5. I have heard Sri Amit Dagga and Sri Dharmendra Singhal, learned Counselor the revisionist as well as Sri Gaurav Kakkar and learned A.G.A. in opposition. 6. Learned Counsels for the revisionist did not addressed on the merits of the revision at all but they confined their submissions only on the legal aspect of the matter and contended that in view of Section 143 of the N.I. Act, offence under Section 138 of the N.I. Act is to be tried summarily and accordingly in consonance with Section 262 Cr. P.C.. the procedure of summons case is to be followed by the Magistrates while trying offence under N.I. Act and therefore, in view of Section 256 Cr. P.C.. the dismissal of complaint in the absence of complainant amounts to acquittal of accused and therefore, no revision against such an order was maintainable in so far as against an order of acquittal, in a case instituted up on a complaint, an appeal against acquittal is maintainable under Section 378(4) Cr. P.C. in this court after obtaining leave to appeal from this Court. They, therefore, conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every trial under this section be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months form the date of filing of the complaint. 9. A perusal of the Section indicate that unless and until the Magistrate finds it undesirable he is to try the offence under N.I. Act in a summary trial in accordance with the provisions of Section 262 to 265 Cr. P.C. Procedure for summary trial is incorporated under CHAPTER-XXI Cr. P.C. engulfing Section 260 to 265 Cr. P.C. For the purposes of Section 143 of the N.I. Act Section 260 and 261 Cr. P.C. has got no application. Section 262 Cr. P.C.. Provides that while trying the case summarily under Chapter XXI the procedure of summons case has to be followed. Thus provisions of Section 256 applies in all trials for offence under Section 138 of the N.I. Act. Section 256 Cr. P.C. provides thus: Non-appearance or death of complainant. 256. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In case he was found to be guilty, he shall record an order of acquittal,. But in case the case was adjourned to some other date and on that date the complainant does not appear, Section 256 enacts that the Magistrate shall acquit the accused. 11. It has further been held by the Apex Court in case of Major General A.S. Gauraya v. S.N. Thakur (XXIII)1986 ACC 346 S.C. as follows: 9. Section 249 of the Criminal P.C. enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. Section 256(1) of the Criminal P. C. enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by a criminal Court due to the absence of a complainant is a proper order. 12. Thus, from the above judgments it is clear that if the complainant or his pleader does not appear before the trial court on the date fixed for appearance of the accused or on any subsequent date the Magistrate has no option but to acquit the accused unless he chooses to adjourn the proceeding to some other date. 13. Now coming to the facts of the present case, it is clear that on 5.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of the acquittal, the complainant my present such an appeal to the High Court. (5) No application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under Sub-section (4)for the grant of special leave to appeal form an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1) or under Sub-section (2). 14. From the perusal of the aforesaid Section it is clear that if an order of acquittal has been passed a case instituted upon a complaint then on an application made before the High Court by the complainant the High Court can grant special leave to appeal from an order of acquittal. Thus in the present case against the dismissal of complaint which amounted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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