SHAKRI AUTOMOTIVE ENTERPRISES Vs. VASU BHATIA

JUDGEMENT

(1.) ORAL ORDER I have heard Mr. Prem ld. counsel for the appellants at some length and also Shri Malkani ld. counsel for the respondent no.1. The appeal impugns the order dated 30th July 1997 wherein, because of the absence of the complainant and his advocate the ld. Additional Chief Metropolitan Magistrate, 24th Court at Borivli dismissed the complaint and acquitted the accused.

(2.) THE complaint is under section 138 of the Negotiable Instruments Act. The roznama shows that the complainant and his advocate have been attending the court right from beginning till 9th October 1996. On 11th December 1996 the complainant was absent and his advocate was present. On 24.1.1997 though the complainant was absent, his advocate was present. On 28.5.1997 the complainant was absent and his advocate was also absent but the accused was present. The case was adjourned to 30th July 1997. On 30th July 1997 the complainant was absent and his advocate was also absent. The accused and his advocate were present and they prayed for dismissal of the complaint on the ground that the complainant was absent.

(3.) I find much force in the submission of Mr. Malkani that in the facts and circumstances of the case. The ld. Magistrate had enough jurisdiction to pass the order of dismissal of the complaint under the provisions of section 256 of the Code of Cri. Procedure and no legal infirmity could be found in the order. One opportunity was given by the ld. Magistrate. Thereafter if the ld. Magistrate found it necessary to dismiss the complaint it cannot be stated that the ld.Magistrate has not exercised his discretion properly. On the basis of the facts and material on record I do not find any error in the order passed by the ld. Magistrate and accordingly appeal is dismissed.