The present appeal is filed by the complainant who has suffered an order of dismissal of the complaint filed under Section 200 of Code of Criminal Procedure (for short, 'Cr.P.C') in Private Complaint No.33/2019 which was dismissed for non-prosecution by order dated 07.04.2021 by the learned trial Judge.
2. The brief facts of the case are as under :- A complaint came to be filed under Section 200 of Cr.P.C alleging commission of offence punishable under Section 138 of the Negotiable Instrument Act by the respondent/accused which was registered in Private Complaint No.33/2019.
3. The learned trial Judge after registration of the case posted the case for recording of sworn statement. However, since the complainant did not appear before the Court for considerable period of time, ultimately by order 3dated 07.04.2021, the learned trial Judge dismissed the complaint for non-prosecution. Being aggrieved by the same, the complainant is before this Court.
4. Irrespective of whether the revision would lie or an appeal would lie against the impugned order, since the trial Court has committed a grave error in not following the procedure prescribed by the Honble Apex Court in the case of Indian Bank Association & Others vs Union Of India & others reported in (2014) 5 Supreme Court Cases 590, the matter can be disposed of on merits on short question whether the approach of the learned trial Judge is justifiable or not.
5. In the case on hand, admittedly after registration of the complaint the learned trial Judge has posted the case for sworn statement. The Hon'ble Apex Court in Indian Bank Association case (supra), the Honble Apex Court has issued following directions ;-
1) The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall 4scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
2) The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.
3) The court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.
4) The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination. (5) The Court concerned must ensure that examination-in-chief, cross-examination and re- examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the court.
56. As per the above directions, the learned trial Judge ought not to have posted the case for sworn statement and should have straightaway issued the summons after verifying the complaint and supporting documents if prima facie case is made out. The learned trial Judge having not adhered to the above directions, the very fact of posting the case for recording sworn statement itself is in correct and against directions issued by the Honble Apex Court in Indian Bank Association case (supra). Therefore, without expressing any opinion on the merits of the case as the accused is yet to be appear before the learned trial Judge, this Court is of the considered opinion that the appeal needs to be allowed. Hence, the following : ORDER Appeal is allowed. The matter is remitted to the trial Court with a direction to adhere to the above directions in its letter and spirit and proceed with the case in accordance with law. 6It is made clear that the rights of the accused is not affected by this order and he is yet to appear before trial Magistrate. In view of disposal of the appeal, I.A.No.1/2021 for grant of leave to appeal is consigned to records. Sd/- JUDGE
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