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HIGH COURT OF GUJARAT
S.V. PINTO
Mahendra Balkrishna Vyas – Appellant
Versus
State Of Gujarat – Respondent
| Table of Content |
|---|
| 1. complainant lent money (Para 1 , 2) |
| 2. evidence of the applicant (Para 3) |
| 3. applicant's evidence not considered (Para 4 , 5) |
| 4. respondent's submission (Para 6) |
| 5. observations by the hon'ble apex court (Para 7) |
| 6. magistrate's discretion (Para 8) |
| 7. improper dismissal of case (Para 9) |
ORDER :
1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Code”) seeking leave to file an appeal against the judgment and order dated 29.05.2024 passed by the learned Additional Chief Judicial Magistrate, Godhra (hereinafter referred to as ‘the learned Trial Court’) in Criminal Case No. 96 of 2021, whereby the original accused – respondent No.2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act”). The respondent No 2 is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present application are as under:
2.1. The complainant was known to the accused as the accus
The court emphasized that acquittal under Section 256 of the Code should not occur solely due to the complainant's absence when evidence is on record, highlighting the need for judicial discretion.
The central legal point established in the judgment is the necessity of exercising judicial discretion and considering the potential adverse consequences for the complainant in dismissing complaints ....
The absence of a complainant's advocate does not justify automatic dismissal of a case if evidence is on record and the accused is avoiding service.
The court emphasized the necessity of a complainant's presence in cases governed by Section 256 of the CrPC and the inappropriate dismissal of cases where evidence has already been presented.
Dismissal under Section 256 Cr.P.C. requires due consideration of evidence on record, and non-appearance of the complainant should not automatically result in acquittal.
The court upheld the dismissal of a complaint for non-prosecution, emphasizing the need for timely justice and the consequences of a complainant's repeated absence.
The dismissal of a complaint under Section 256 for non-appearance is improper if evidence is recorded, emphasizing the need for trial on merits to avoid undue acquittal.
The discretion under Section 256 of the Code of Criminal Procedure must be exercised judicially and fairly without impairing the cause of administration of criminal justice.
Absence of complainant does not automatically lead to dismissal of charges when evidence is on record, as per Section 256 of Cr.P.C.
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