TaxTMI 
TaxTMI 
2023 (7) TMI 759
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..... 3. The Court of Metropolitan Magistrate, 28th Court, Mumbai as per order dated 17th September 2022, was pleased to dismiss the complaint for non appearance of the complainant by taking recourse to the provisions of Section 256 of the Code of Criminal Procedure. The complainant intends to prefer an Appeal, that's why leave is sought. If the leave is granted, the Appeal will be admitted. If the leave is refused, the Appeal will not be admitted. The complaint was dismissed at pre-trial stage. So the issue can be decided only on the basis of the documents which are filed before this Court. 4. It is true that for deciding the issue of grant of leave this Court is required to go through the documents, so also these documents needs to be peru....
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....raj Jawanmal Rawal & Ors. Cri. Appeal No. 243/2023 dt. 12/06/2023 High Court of Bombay Submission on behalf of the respondent. 7. Whereas learned Advocate Mr. Dave for Respondent No. 1 strenuously argued that the cases under Section 138 of the N.I. Act needs to be disposed of within a period of six months and there is no reason for absence of the complainant on 11th July 2022, and on 17th September 2022. He supported the order. He has made the following submissions : (i) When the complainant went to the extent of praying for drastic measure of issuing non-bailable warrant against Respondent No. 1-accused on 4th December 2021, he cannot blame the learned Magistrate for dismissal of the complaint due to his absence on two dates. (ii) ....
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....sible. The period mentioned in the section is six months. It is also true that there are thousands of cases pending in Mumbai and in the State of Maharashtra before the Courts of Magistrate. It is also true that due to these cases, hearing of other criminal cases lags behind. That's is why Hon'ble Supreme Court has taken note of this pendency and decided to examine reasons for delay in disposal of these cases. The statistics of all these cases is given in para 5. The Constitutional Bench was also formed. The directions are given in para 24. It talks about giving reasons for converting trial of complaints from summary trial to summons trial, what should be approach if the accused is residing out of limits of the concerned Court. It also deal....
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....e Hon'ble Supreme Court has set aside the order of restoration passed by the High Court. Learned Advocate Mr. Dave emphasized on the observations therein. Whether we can simply look at the order passed by any Court without going into factual aspects ? The answer is "No". Ultimately, we have to consider the facts and circumstances and how the law is made applicable. 13. In case of S.Rama Krishna (supra), the original complainant has expired and Application for substitution of their names was pending. The legal representative remained absent for 14 dates (para 2). On this background, learned Magistrate dismissed the complaint. When the matter reached the High Court, the High Court restored the complaint and took a view that it is always bett....
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....resent. Exemption application was filed and the Court dismissed the complaint and acquitted the accused. 14. The plea was recorded on 6th December 2021. The learned Magistrate thought it fit to cancel the warrant even though the complainant was not present. It was the discretion of learned Magistrate. No doubt, the complainant could have seen the roznama on website also. No doubt, it is true that from 6th December 2021, the complainant got time upto 11th July 2022. On 11th July 2022, the complainant neither remained present nor filed an affidavit of examination in chief. Even thereafter the complainant got two months from 11th September 2022, but the complainant did nothing as such the complainant got time from 6th December 2021 upto 17th....
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....aitjacket formula. It depends upon the facts. In particular case even six dates or more than that can be presumed to be sufficient for not dismissing the complaint. It is pure question of fact. 16. Learned Advocate Mr. Dave is right that now-a-days you can see roznama online. He is right that the accused is not required to attend the Court and to reproduce record. However, what I feel is that two days absence cannot be said to be justifiable ground for dismissing the complaint. It is not job of the Court to see that the matters are dismissed just because either of party is not remaining present. The job of the Court is to see that justice is done by giving sufficient opportunities to the parties. Always there is rule of audi alteram partem....