ORDER :

Order in Criminal Misc. Application

In view of the submissions and the grounds raised in the application, leave to appeal is granted. The application stands disposed of.

Order in Appeal

Admit.

1. Advocate Mr. Jatin Yadav for Mr. P.P. Majmudar, learned advocate for the applicants has produced rojnama of the proceedings of Criminal Case No.47510 of 2013 to challenge the order dated 18.12.2022, where the matter came to be dismissed for default and the accused was acquitted.

2. Mr. Yadav submitted that the learned Judge has not even perused the proceedings, when the matter was actually for the hearing of Exhibit-38, which was filed on 24.08.2018 under section 91 of Cr.P.C., praying for a direction to the accused to produce the documentary evidence. Thereafter, the matter stood transferred to 18th Additional Chief Judicial Magistrate and continued for hearing, where none of the parties had even prayed for any adjournment.

3. Mr. Yadav submits that there was an application for summons to the complainant and on the very next adjournment, the proceedings shows that the Court was on video conferencing and matter stood adjourned to 03.07.2021, where the matter was again posted for hearing of Exhibit-38. Mr. Yadav submitted that it was strange that, an application, Exhibit-42, was moved from the side of accused to dismiss the matter and the learned Judge even thereafter posted twice the matter for hearing of Exhibit-42 and oblivious of the fact that on earlier date the matter was for hearing of Exhibit- 38. Mr. Yadav submitted that the complainants were represented by Advocate on record and when the application was moved under section 91 of Cr.P.C. for a direction to the accused to produce documentary evidence, the learned trial Court Judge ought not to have dismissed the matter.

4. Here, in this case, the verification of the matter was taken on the private complaint and Inquiry was numbered as 760 of 2013, and after verification under an order, the Criminal Case No.47510 of 2013 was registered, cognizance was taken and process was issued under section 204 of the Cr.P.C. The learned Judge ought to have considered that there was no dismissal of the complaint under section 203 of Cr.P.C. The learned Additional Chief Judicial Magistrate was of the opinion of taking cognizance of the offence considering to be a sufficient ground for proceeding and therefore, ordered for issuance of summons. The learned Judge ought to have taken into consideration the provisions of section 205 of Cr.P.C. and the very provision, which grants the power to the Magistrate to dispense with the personal attendance of the accused and permit him to appear by his pleader, and can direct the personal attendance of the accused as and when necessary. At the same time, ought to have seen that the complainant is represented by an Advocate on record and there was an application, Exhibit- 38, to invoke the power under section 91 of the Cr.P.C.; the learned Judge should have heard that application first rather than entertaining the application for dismissal of the complaint, observing that the complainant is not interested in proceeding with the matter, where on record, the complainant had given his verification and the Court had deemed fit to take cognizance of the matter. The matter was for hearing of the application, Exhibit-38, and the order passed for dismissal of the complaint for default of the complainant and acquitting the accused, is inherently bad in law.

5. In Associated Cement Co. Ltd. Vs. Keshvanand, reported in (1998) 1 SCC 687, the Hon’ble Apex Court while referring to the provisions of section 256 of Cr.P.C. in context of the complaint filed under section 138 of the N.I. Act, has made observations as under:

“15. Section 256 of the Code of Criminal Procedure, 1973 (for short 'the new Code') is the corresponding provision to Section 247 of the old Code. The main body of both provisions is identically worded, but there is a slight difference between the prov