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MADAN GOPAL VYAS
Gayanendra Singh Rathore – Appellant
Versus
State of Rajasthan – Respondent
JUDGMENT
1. The present cri. Appeal under Section 378(4) of the Criminal Procedure Code, 1973 has been preferred by the appellantcomplainant against the orders dated 31.1.2015 and 17.5.2016 passed by the learned Addl. Chief Metropolitan Magistrate (Economic Offences), Jodhpur Metropolitan, Jodhpur in Cr. Case (Complaint) No.964/2010 arising out of complaint for the offence under Section 138 of the Negotiable Instruments Act, whereby the accused-respondent No.2 herein has been acquitted from the charge of offence under Section 138 of the NI Act.
2. Briefly stated, the facts of the case are that the present appellant filed a complaint under Section 138 of the NI Act against the respondent No.2 herein for dishonour of cheque bearing no.565251 dated 26.2.2006 of ICICI Bank amounting to Rs.1,00,000/-. Thereafter, the learned trial court issued summons to the respondent No.2 vide order dated 17.11.2006, but he did not appear before the learned trial court. Ultimately, bailable warrants were issued against the accused, but the same could not be served for 6 years and on the request of the appellant, the trial court initiated proceedings under Sections 82 and 83 Cr.P.C against the accused vi
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 discretion under Section 256 of the Cr.P.C. must be exercised judicially and fairly, and the trial court should adjourn the case or issue a warrant/summons to the accused instead of immediately d....
The court emphasized that cases should be decided on merits rather than technicalities, restoring the complaint for fresh adjudication after the trial Court's dismissal for non-appearance.
Section 256 CrPC provides discretion to Magistrate either to acquit accused or to adjourn case for some other day, if he thinks it proper.
A complainant’s repeated absence in a Section 138 case can lead to acquittal for lack of evidence, but a court may allow further opportunity to adduce evidence to ensure fair justice.
The court emphasized that dismissal of a complaint for non-appearance must be exercised judiciously, ensuring the complainant is given a fair opportunity to present their case.
The importance of the complainant's personal attendance for the progress of the case and the discretion of the Magistrate to adjourn the hearing or dismiss the complaint.
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