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Showing contexts for: 256 crpc in Abhishek Chaudhary vs State on 27 September, 2011Matching Fragments
1 The petitioner had filed a criminal complaint under section 138 Negotiable Instruments Act against respondents no. 2 to 5.
2 Vide order dated 21.7.2010, Ld. MM had directed thast the respondents no. 2 to 5 be summoned on deposit of PF etc. 3 The petitioner did not appear on 3.12.2010. Ld. MM did not dismiss the complaint in default and adjourned the matter to 27.1.2011. He also did not appear on 27.1.2011. However, the Ld. MM this time also did not dismiss the complaint in default and adjourned the matter to 8.3.2011 for further proceedings. 4 On 8.3.2011, also no one appeared on behalf of the petitioner. As such the complaint was dismissed u/s 256 CrPC for Distt. Judge/ASJ, ND nonappearance. It was also mentioned in the order that the accused are acquitted.
8 I have considered the submissions.
9 In the present case the accused (respondents) were ordered to be summoned. The complaint was dismissed in default on 8.3.2011. The question before the court is as to what is the affect of the order dated 8.3.2011.
10 This question had come up before the Hon'ble High Distt. Judge/ASJ, ND Court in two different cases. In both the cases the effect of dismissal of the complaint in default had been discussed at length. 11 In KK Gupta Vs Mohd. Jaros and Another 2002 VIII AD (Delhi) 47, the accused was present but the complainant was absent on the date of hearing. The complaint was dismissed in default u/s 256 CrPC. The Hon'ble High Court after taking into account judgements rendered by Division Bench of Hon'ble High Court had held that the revision was not maintainable. In that case the Ld. Addl. Sessions Judge, had even after observing that the revision was not maintainable, took the view that powers under section 397 CrPC can be exercised. The complaint was ordered to be restored. It was held by the Ld. Addl. Sessions Judge that there was an illegality and defect in procedure. Against the order of the Ld. Addl. Sessions Judge, the accused had filed the petition u/s 482 CrPC and the Hon'ble High Court had set aside the order of the Ld. Addl. Sessions Judge. It was held that only an appeal was maintainable. 12 This very view was taken by the Hon'ble High Court in Kalpna Vs Sneh Lata 2003, Crl. L.J. 3395. 13 The argument that the accused had not appeared, Distt. Judge/ASJ, ND therefore, the judgement is distinguishable on facts, is of no consequence in view of language of section 256 CrPC. 14 Section 256 CrPC reads as under: "256. Nonappearance 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: