M/S Madhyam Estate Linkers Pvt Ltd v. M/S Dhingra Jardine Infrastructure Pvt Ltd And Others

 


   

 





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As it emerges from the f factual matrix, the accusedrespondents s had issued a cheque amounting g to Rs.13 lakh in favour of the complainan nt-applicant, to discharge th heir legal debt, which on presentation n got dishonoured, due to 'funds insufficient'. A complaint

%(% under Sections 138/141 NI Act was filed, wherein summoning order was passed, but due to absence of the complainant-applicant as well as its counsel, the said complaint came to be dismissed in default for want of prosecution vide order dated 09.09.2019.

3.

Learned counsel submits that the accused were summoned to face the trial; the complainant was regularly appearing before the trial Court, but on 09.09.2019, following which the complaint came to be dismissed in default. The absence was neither wilful nor deliberate, rather the same was on account of having noted down the wrong date. The applicant did not have anything to gain by not appearing or delaying the proceedings, which as a matter of fact, had already been pending since 2017.

4.

It would be apposite to make a reference to Section 256 Cr.P.C., which reads thus:

"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 nonappearance of the complainant is due to his death."

%&% 5.

As is evident from the foregoing provision, it applies only after summons have been issued to the accused, i.e. at the postsummoning stage. A wide discretion has been conferred on the Magistrate to either proceed with the case despite the absence of the complainant, if represented by a pleader or by officer conducting the prosecution, or adjourn the matter on valid grounds. However, if the complaint is dismissed for default at such a stage, the inevitable result is the acquittal of the accused.

6.

In V.K. Bhat vs. G. Ravi Kishore, (2016) 13 SCC 243, Hon'ble the Supreme Court while considering the question as to whether in a case where the complaint was dismissed, the same tantamounts to acquittal and in such a situation whether a revision under Section 397(3) CrPC or appeal under Section 378(4) CrPC would lie, held that, "After hearing the learned counsel for the parties, we find that there is some force in the submissions made by learned counsel appearing for the appellant and we hold, in the facts of the case, that dismissal of the complaint for non-prosecution of the complainant amounts to acquittal as contemplated in section 256 of the Code of Criminal Procedure, 1973." 7.

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