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ANOOP KUMAR DHAND
K. K. Construction, Proprietor Shri. Kishan – Appellant
Versus
Bhagwan Singh Poswal Chairman Shri. Vinayak Mission Medical And Education Society Jaipur – Respondent
ORDER :
Anoop Kumar Dhand. J.
This criminal appeal under Section 378(4) Cr.P.C. challenges the impugned order dated 05.04.2022 passed by the Special Metropolitan Magistrate (NI Act) Cases, No.12, Jaipur Metropolitan-I, Headquarter Sanganer in Criminal Case No.1336/21 by which the complaint filed by the appellant/complainant (hereinafter referred as "the complainant") has been dismissed for want of prosecution under Section 256 Cr.P.C. and the accused-respondents (hereinafter referred as "the respondents") have been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short "Act of 1881").
2. Counsel for the complainant submits that a complaint under Section 138 of the Act of 1881 was submitted by the complainant against the respondents initially before the Court of Special Metropolitan Magistrate, NI Act Cases, No.3, Jaipur Metro and the same remained pending before the Court of Metropolitan Magistrate No.17, Jaipur Metro-I for a considerable time since 2013 till 2021. Counsel submits that almost on each and every occasion, counsel for the complainant appeared before the Court concerned and thereafter the case was transferred to the Court of Special M
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.
Straightway dismissal of Section 138 complaint on single non-appearance unjustified; courts must exercise Section 256 Cr.P.C. discretion judicially, adjourning or dispensing attendance to ensure just....
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 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 ....
Magistrate is not justified in straight away dismissing complaint(s) and ordering acquittal of accused on mere non-appearance of complainant.
Section 256 CrPC provides discretion to Magistrate either to acquit accused or to adjourn case for some other day, if he thinks it proper.
The trial Court must consider the representation of the complainant by counsel before dismissing a case under Section 256 of the Cr.P.C.
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 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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