Case Note & Summary
The applicant, Agasti Sarv Seva Sangh, filed a criminal complaint against the respondent, Bandu Morsing Pawar, alleging offences under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The Magistrate ordered process only under Section 138 of the Negotiable Instruments Act. The case remained pending for about five years because the complainant could not secure the presence of the accused despite the court issuing summonses and warrants. On 31.08.2013, the learned Magistrate dismissed the complaint in default under a 'Special Drive', noting that the case was old and the complainant had failed to serve the accused despite ample opportunity. The applicant challenged this dismissal by way of a criminal revision application before the High Court. The High Court heard both sides. The court examined the order of the Magistrate and found that it was passed under Section 256 of the Code of Criminal Procedure, 1973, which empowers the Magistrate to dismiss a complaint for non-appearance of the complainant or for failure to secure the accused's presence. The court noted that the dismissal was not a judgment on merits but an order of acquittal. The High Court held that the Magistrate's order was not perverse or illegal and did not warrant interference in revision. The revision application was dismissed.
Headnote
A) Criminal Procedure Code - Dismissal for Default - Section 256 CrPC - The Magistrate dismissed the complaint under Section 138 of the Negotiable Instruments Act for non-prosecution as the complainant failed to secure the presence of the accused despite ample opportunity over five years. The High Court held that the dismissal was in accordance with Section 256 CrPC and was an order of acquittal, not a judgment on merits. The revision was dismissed as the order was not perverse or illegal. (Paras 3-6)
B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - The complaint alleged dishonour of cheque under Section 138 of the Negotiable Instruments Act and Section 420 IPC. Process was issued only under Section 138. The case remained pending for five years as the accused's presence could not be secured. The Magistrate dismissed the complaint for default under a special drive. The High Court upheld the dismissal, noting that the complainant had ample opportunity to serve summons or execute warrants but failed. (Paras 3-5)
Issue of Consideration
Whether the Magistrate was justified in dismissing the complaint for default under Section 256 of the Code of Criminal Procedure, 1973 when the complainant failed to secure the presence of the accused despite ample opportunity, and whether such dismissal amounts to an acquittal or a discharge.
Final Decision
The High Court dismissed the criminal revision application, upholding the Magistrate's order of dismissal for default under Section 256 CrPC.
Law Points
- Section 256 CrPC
- Section 138 Negotiable Instruments Act
- Dismissal for default
- Non-prosecution
- Acquittal not on merits
- Revision against dismissal
Case Details
2014 LawText (BOM) (01) 1
Criminal Revision Application No. 14 of 2014
Mr. S.T. Shelke for applicant, Mr. R.B. Ade for respondent
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Nature of Litigation
Criminal revision application against dismissal of complaint under Section 138 Negotiable Instruments Act for non-prosecution.
Remedy Sought
The applicant sought to set aside the Magistrate's order dismissing the complaint and to restore the complaint.
Filing Reason
The applicant filed a criminal complaint alleging dishonour of cheque under Section 138 Negotiable Instruments Act and Section 420 IPC. The Magistrate dismissed the complaint for default as the complainant failed to secure the accused's presence.
Previous Decisions
The Magistrate dismissed the complaint on 31.08.2013 under a special drive, noting the case was five years old and the complainant had ample opportunity but failed to serve the accused.
Issues
Whether the Magistrate was justified in dismissing the complaint for default under Section 256 CrPC when the complainant failed to secure the presence of the accused despite ample opportunity.
Whether the dismissal order is perverse or illegal warranting interference in revision.
Submissions/Arguments
The applicant argued that the Magistrate erred in dismissing the complaint for default without considering the merits.
The respondent supported the Magistrate's order, submitting that the complainant had ample opportunity but failed to secure the accused's presence.
Ratio Decidendi
The dismissal of a complaint under Section 256 CrPC for non-appearance of the complainant or failure to secure the accused's presence is an order of acquittal and not a judgment on merits. The Magistrate has discretion to dismiss the complaint if the complainant fails to prosecute the case diligently. Such an order cannot be interfered with in revision unless it is perverse or illegal.
Judgment Excerpts
The applicant had filed a criminal case against the respondent alleging commission of offences punishable under section 138 of the Negotiable Instruments Act and section 420 of the Indian Penal Code (IPC).
On 31.08.2013, the learned Magistrate dismissed the complaint in default by the following order, which was titled by him, as 'Special Drive Dated 31.08.2013'
The order passed by the learned Magistrate is not a judgment on merits. It is an order of acquittal passed under Section 256 of the Code of Criminal Procedure.
The order passed by the learned Magistrate cannot be said to be perverse or illegal. No interference is called for.
Procedural History
The applicant filed a criminal complaint against the respondent under Section 138 Negotiable Instruments Act and Section 420 IPC. Process was issued only under Section 138. The case remained pending for about five years as the accused's presence could not be secured. On 31.08.2013, the Magistrate dismissed the complaint for default. The applicant filed Criminal Revision Application No. 14 of 2014 before the High Court, which was dismissed on 28.01.2014.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Indian Penal Code, 1860: 420
- Code of Criminal Procedure, 1973: 256
