IMPORTANT POINT
Section 256(1) Cr.P.C. cannot be used to acquit an accused when warrants have been issued, ensuring protection for complainants pursuing legitimate claims.

JUDGMENT :

Rakesh Thapliyal, J.

1. By the instant C482 application, applicant is challenging the order dated 31.01.2024 passed by learned Addl. Chief Judicial Magistrate, Haldwani, District Nainital in Complaint Case No. 1324 of 2017 (Amarjeet Singh Vs. Rajwant Singh) whereby the complaint of the applicant under Section 138 of the Negotiable Instruments Act, 1881 has been rejected and accused / respondent no. 2 has been acquitted.

2. Brief facts of the present case are that applicant had given Rs.1,20,00,000/- (Rupees One Crore Twenty Lakh only) to respondent no. 2, who had promised him to return the same. Thereafter, respondent no. 2 had given three cheques pursuant to an agreement dated 04.10.20216 executed between the applicant and respondent no. 2. When applicant submitted cheques for the encashment in the Bank the same were dishonoured. Cheque bearing no. 710503 for an amount of Rs.30,00,000/- was dishonoured on 06.03.2017. Subsequently, a complaint no. 1324 of 2017 was filed, in which cognizance was taken and summons were issued to respondent no. 2 but respondent no. 2 did not appear, consequently, bailable warrant followed by non bailable warrant were issued and subsequently, proclamation under Section 82 Cr.P.C. was issued despite this he did not appear. Thereafter, on 20.11.2023, the trial court constituted a special police team for execution of non bailable warrant and steps were taken by the applicant but on 31.01.2024 the complaint has been rejected on the ground that applicant was not present on the date of hearing and it appears that he is not pursuing the matter.

3. As it appears from the order under challenge the Addl. Chief Judicial Magistrate rejected the complaint by invoking Section 256 Cr.P.C. Now, Section 256 Cr.P.C is being reproduced as under :

“256 Non-appearance or death of complainant.

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”

4. Learned counsel for the applicant submits that there was no occasion for the Magistrate to reject the complaint of the applicant by invoking Section 256 Cr.P.C. since on the complaint, cognizance was taken, summons were issued, and when respondent no. 2 did not appear, bailable warrants followed by non bailable warrants were issued and not only this even proclamation under Section 82 Cr.P.C. was issued and thereafter, the court itself has constituted a Special Police team for execution of non bailable warrant and despite this respondent no. 2 did not appear, therefore, the Magistrate has wrongly rejected the complaint particularly when respondent no. 2 did not appear despite bailable warrant followed by non bailable warrant and proclamation under Section 82 Cr.P.C.

5. Learned counsel for the applicant has placed reliance on the judgment rendered by the Kerala High Court in the case of Joy Abraham Vs. Jiju Thomas 2006 SCC online Ker 232 wherein it is observed that Section 256 (1) Cr.P.C. does not apply to a case in which warrant is issued. The Magistrate shall not, under Section 256 (1) Cr.P.C., acquit an accused whose production in Court is sought for under an arrest warrant. In short, an accused against whom warrant is issued shall not be acquitted under S. 256(1) of the Code of Criminal Procedure. The ben