A person filed a complaint under Section 138 of the NI Act but does not appear in the Court. What will happen ?
The provisions for the non-appearance of the complainant are laid down under section 256 of the Code of Criminal Procedure, 1973 which says -
If the complainant does not appear in the court then the Magistrate can acquit the accused.
However, there are two constraints imposed on the court for exercising this power of acquittal. First, if the court thinks that in that particular situation it is proper to adjourn the hearing then the accused is not acquitted.
Second, if the magistrate considers that the personal attendance of the complainant is not necessary then the Magistrate may dispense with the attendance and proceed with the case.
Whenever, a complainant is absent on a particular day the court considers there two things – whether personal attendance is necessary and whether the situation justifies adjournment of the hearing to other date or not due to any reason. Therefore, it is the discretion of the court depending upon the facts and circumstances of each case on the basis of which a complaint can be dismissed due to non-appearance of the complainant.
It would depend upon the facts and circumstances of each case. The endeavour must be to do Justice and not to take advantage of technicalities. The urge to resort to easy way out must give way to judicial justness.
(Associated Cement Co. Ltd Vs Keshvanand AIR 1998 SC 596, (Raviselvam vs Nalini Vijayakumar 2000 102 CompCas 76 Mad, 1998 (2) CTC 647)
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