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TMI Blog2022 (6) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain compliances on 17.7.2020 and after compliances, it was re-presented on 24.7.2020 Again, the complaint was returned on 28.7.2020 and it re-presented on 22.9.2020. Once again it was returned on 25.9.2020 and after compliance, it was re-presented on 12.10.2020 in unnumbered S.T.C. of the year 2020. vii) Whileso, when the complaint was still in unnumbered stage, the matter had been taken up by the Magistrate on 12.11.2021 and the learned Judicial Magistrate had dismissed the complaint under Section 256 Cr.P.C. with the following order:- Complainant called absent. No representation. Past several hearings complainant called absent. No representation. Complainant is not interested to proceed the case further. Hence the complaint is dismissed U/S. 256 Cr.P.C. viii) The present criminal original petition has been filed seeking to set aside the order. 3. Learned counsel for the petitioner would submit that the a complaint has been filed for offence under Section 138 of the Negotiable Instruments Act and despite the fact that the petitioner complied with the returns, the court had repeatedly returned the Application stating one reason or the other. The petitioner ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Magistrate, even before issuing process to the accused, had dismissed the complaint for default viz., for the absence of the complaint. It is useful to refer to the provision under which the learned Magistrate had dismissed the complaint viz., Section 256 Cr.P.C. 256. Non-appearance or death of complainant. (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 to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. 8. Section 256 Cr.P.C. is the onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. 11. In K. Meenakshi vs. S. Mohana (2008 Cri. LJ 1781), it has been held as under:- 8. The present Complaint is by a private party for the offence punishable under Section 138 of Negotiable Instruments Act and not by a public servant. Therefore, the presence of the complainant and his/her examination on oath is absolutely necessary before taking the Complaint on file. Since on 10.04.2003 the complainant was called absent, an endorsement was made, dismissing the Complaint for default. Dismissal of a Complaint could 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint on merits, there is no bar for filing even a second Complaint on the same set of facts and allegations. 11. Under such circumstances, I am of the considered view that no prejudice has been caused to the accused/Petitioner and the contentions that the endorsement dated 10.04.2003 must be taken as final order and that the respondent/complainant has only Appeal remedy against such endorsement are not well founded. It follows that the action of the learned Magistrate in taking the Complaint on file is well within his jurisdiction and is in consonance with the procedure prescribed under the Code and therefore, the present Petition filed under Section 482, Cr.P.C. to quash the proceedings is not well founded. 12. In O.C. Periyasamy vs. D. Venkatesan @ Ravi (CDJ 2010 MHC 4389) : (2010) 2 MWN (Cri.) DCC 68, it has been held as under:- Under Section 190(1)(a), Cr.P.C., the Magistrate has to receive the Complaint and thereafter, under Section 200, Cr.P.C. shall examine upon oath of the Complainant and the witnesses present, if any, for recording the sworn statement of the Complainant and other witnesses and the Magistrate may take cognizance of the offences or he may di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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