The court emphasized that the power under section 256 of the Code of Criminal Procedure to dismiss the complaint and acquit the accused could only be exercised after the accused had appeared in the matter, and the complainant failed to appear on the date listed for the hearing of the case.

V.L. Achliya, J.

By the present appeal, the appellant-complainant has challenged the impugned order dated 15.12.2015 passed in Sum. Criminal Case No. 358/2014 by J.M.F.C Amalner Dist. Jalgaon, whereby the learned judge has dismissed the complaint and acquitted the respondent/accused in default of taking steps to serve the accused by exercising power under section 256 of the Code of Criminal Procedure.

2. Heard the learned counsel for the appellant. The respondent though served failed to appear in spite of notice of final disposal sent and served upon him.

3. The learned counsel for the appellant assailed the impugned order with contention that order is not sustainable in law for the sole reason that powers under section 256 of the Code of Criminal Procedure could not have been exercised by the learned Magistrate as the summons was not served upon the accused. He submits that appellant has taken all necessary steps to serve the respondent/accused. Notice sent through the process of court as well as by Reg. Post. A.D could not be served as respondent has deliberately avoided 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 send through Reg. Post. A.D. Notice sent to the respondent/accused returned with report that the person found at the address refused to accept the notice by assigning the reason that his name is not "Ashok Pundalik Patil" but his name is Ashok Pundlik Saindane. After receipt of report the case was posted for taking steps. Due to non appearance of the complainant the complaint came to be dismissed.

5. The impugned order reads as under :-

"When called complainant and his Advocate absent. On perusal of record, it appears that complainant is absent since long and failed to take steps. On 28.08.2015 an order was passed below Exh.1 and thereby last opportunity was provided to the complainant. Even, thereafter also complainant failed to appear before court and to take necessary steps. It seems that accused is not interested to proceed with the matter. Therefore, no purpose will serve to keep matter pending. Hence complainant stand disposed off in view of section 256 of Code of Criminal Procedure. Accused stand acquitted."

On the face of record the impugned order is not sustainable in law for the sole reason that stage has not reached to exercise power under section 256 of the Code of Criminal Procedure to dismiss the complaint and acquit the accused. The order of the dismissal of the complaint and acquittal of accused u/sec. 256 of the Cr.P.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 under section 256 of the Code of Criminal Procedure the order des