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SEC.138 NI ACT COMPLAINT ONCE DISMISSED IN DEFAULT RESULTS IN ACQUITTAL OF ACCUSED, CAN'T BE RESTORED:HC

Team SoOLEGAL 15 Jun 2022 2:20am

Image courtesy: SoOlegal SEC.138 NI ACT COMPLAINT ONCE DISMISSED IN DEFAULT RESULTS IN ACQUITTAL OF ACCUSED, CAN'T BE RESTORED:HC

New Delhi: The High Court of Jammu and Kashmir and Ladakh has ruled that once a complaint is dismissed due to the complainant's non-appearance, the necessary consequence is the accused's acquittal, and that restoration of the proceedings is not permitted.

In such a situation, the complainant's only option, according to Justice Sanjay Dhar's single-judge bench, is to seek statutory relief.

The petitioner, who was the accused in the trial, had challenged the respondent's complaint accusing him of violating Section 138 of the NI Act.

The Trial Magistrate dismissed the complaint about non-prosecution due to the complainant/non-appearance. The complainant/respondent applied for complaint restoration, which was granted. The petitioner, who was the accused in the trial, had challenged the respondent's complaint against him, alleging the commission of an offense under Section 138 of the NI Act.

The petitioner/accused has challenged both the complaint and the proceedings that have been initiated in response to it. He contended that the respondent filed the impugned complaint after the statute of limitations had expired and that the learned trial Magistrate issued a process against the petitioner without recording any reasons for condoning the delay in filing the complaint. It was also argued that once the complaint was dismissed for non-prosecution, the learned trial Magistrate lacked jurisdiction to reinstate it, and thus the proceedings initiated against the petitioner on the impugned complaint are without jurisdiction.

The Court agreed, noting that if a Magistrate chooses to dismiss a complaint due to the complainant's non-appearance, he must also acquit the accused, implying that the acquittal of the accused is a necessary consequence of the complaint being dismissed due to the complainant's non-appearance.

"Once the learned trial Magistrate had recorded the order of dismissal of the complaint because of non-appearance of the complainant, the necessary consequence thereof is the acquittal of the accused."

The Court also cited Section 369 of the J&K Civil Procedure Code, which states that once a judgment is signed by a Court, it cannot be altered or reviewed unless there is a clerical error.

"Since the dismissal of the complaint by the learned trial Magistrate for nonappearance of the complainant amounted to the judgment of acquittal of the accused, therefore, it was not open to the learned trial Magistrate to review the said order in view of the statutory bar contained in Section 369 of the J&K Cr. P. C. Order dated 19.04.2017 is, therefore, without jurisdiction and is not sustainable in law."

In this regard, the Court suggested that the respondent/ complainant's option in these circumstances was to file an appeal against the said order after seeking leave under Section 417 of the J&K Cr. P. C.

"Filing of an application for restoration of the complaint, which, in effect, amount to seeking review of the order of dismissal of the complaint, was not the proper course for the respondent/complainant to adopt."



Tagged: SEC.138  
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