TaxTMI 
TaxTMI 
2025 (6) TMI 671
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....earned 1st Additional Civil Judge (Junior Division)/Judicial Magistrate, Nainital in Criminal Complaint Case No. 1499 of 2016 titled "Narendra Singh Rathor vs. Nafeesh Ahamed", whereby the said complaint was dismissed for want of prosecution, as well as to set aside the judgment and order dated 31.08.2018 passed by the learned 2nd Additional District Judge, Nainital in Criminal Revision No. 27 of 2018 arising therefrom. 2. The proceedings originated from a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by the applicant against the private respondent, alleging dishonour of cheque(s). The complaint was registered on 28.06.2016 before the Court of the learned Chief Judicial Magistrate, Nainital. 3. Cognizance ....
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.... counsel for the applicant submitted that the order dated 19.01.2018 passed by the learned trial court suffers from material irregularity and is liable to be set aside. It is urged that the complaint under Section 138 of the Negotiable Instruments Act was diligently prosecuted until unforeseen lapses caused by inadvertent non-appearance on a few dates led to its dismissal for default. 9. It is contended that the absence of the applicant or his counsel on 08.01.2018, 12.01.2018, and 19.01.2018 was not intentional but occurred due to a bona fide slip of memory, particularly as the presiding officer was on leave on multiple prior dates, including 13.11.2017, 27.11.2017, and 13.12.2017. It is urged that the complainant was under the impressi....
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.... number before the trial court. 14. Learned counsel appearing for respondent no. 2, Nafeesh Ahamed, vehemently opposed the application and contended that the present proceedings under Section 482 CrPC are wholly misconceived, legally untenable, and constitute an abuse of the process of the Court. 15. It is submitted that the order dated 19.01.2018 was passed by the learned trial court in accordance with law, invoking Section 256 CrPC, after the complainant remained continuously absent on six dates of hearing-namely 13.11.2017, 27.11.2017, 13.12.2017, 08.01.2018, 12.01.2018, and 19.01.2018. The respondent emphasises that such serial absence cannot be characterised as a mere "accidental slip" or bona fide lapse. 16. The respondent ar....
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....he respondent and resulted in the wastage of judicial time. 20. Lastly, it is urged that the complaint was dismissed after repeated indulgence and not on the first instance of default. Restoration at this stage would not only set a poor precedent but also amount to overriding the statutory protection afforded to the accused under Section 256 CrPC. Accordingly, it is prayed that the application be dismissed with exemplary costs to prevent further abuse of process. 21. Heard learned Counsel for the parties and perused the records. 22. It is not in dispute that the applicant/complainant had instituted a complaint under Section 138 of the Negotiable Instruments Act, which was duly registered and proceeded to the stage of issuance of su....
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.... 26. Section 378(4) CrPC states that, "If such an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court." 27. Additionally, the Madras High Court in S. Ganapathy V. N. Senthilvel (2016) 4 CTC 119) has held that "As against an order of acquittal passed by a Magistrate on acomplaint, an appeal will lie only before the High Court, under Section 378 (4) of Cr.PC. In such cases, the complainant has to seek for Special leave under Section 378 (5) of Cr.PC." 28. Similarly, the decisions of the Hon'ble Suprem....