BHUPINDER KUMAR LOOMBA Vs. HARBHAJAN SINGH

JUDGEMENT

(1.) THE grievance of the present applicant, who is accused in criminal complaint case No. 2415 of 2013, captioned as Harbhajan Singh vs Bhupinder Loomba, under Section 138 of the Negotiable Instruments Act, 1881, in a nutshell, is that proceedings under Section 340 of Cr.P.C. be initiated against the son of the complainant and he be acquitted under Section 256(1) of Cr.P.C. in default of the complainant. In other words, the submission of learned counsel for the applicant is that since the complainant did not appear in the proceedings of the court below, and instead, his son came and appended his signatures, therefore, the proceedings of the complaint case filed under Section 138 of the Negotiable Instruments Act be dropped against the applicant and the son of the complainant be prosecuted under Section 340 of Cr.P.C. When such a submission was made before learned Special Judicial Magistrate, Dehradun, who is seized with the matter, he was of the view that the person doing pairavi on behalf of the complainant was none other than the son of the complainant. The complainant was duly represented by his counsel. It was not such a case that the complainant was totally un -represented. Even if the complainant was not present in person on certain dates, the counsel entered appearance for him, alongwith complainant's son. No undue advantage was taken by the complainant's son for appending his signatures on the order -sheet [he never portrayed himself as the complainant].

(2.) IT is provided under Section 256 of Cr.P.C. that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. Otherwise also, the Magistrate may, if he thinks it proper, adjourn the hearing of the case to some other day as is provided under sub -section (1) of Section 256 of Cr.P.C.

(3.) NO illegality was, therefore, committed by learned Magistrate while passing the impugned order.