Complainant fails to appear for proceedings u/s138

Mohan Ji,

dont file any such application at this stage.

if the complainant has not been able to prove his case then certianly you will be acquitted.

i must advice u pls seek services of some local lawyer.

complaint can be dismissed even in the absence of the complainant...but that law has been rendered a bit flexible now.  see Ss. 249 and 256 of Cr.P.C

Mohanji,

One thing you must understand that you are facing crimnal trial result of which may be aquital of you or may be punishment, eighter fihe or fine +imprisionment. Do not take it lightly.

I advice you , you must appoint a lawyer for the said case .Do not think that you can do better  then a lawyer.

If any opportunity comes that complaint can be dismissed you must press it. Court has power and jurisdiction to dismissed the complaint in the absence of complaint.

mr. narendra kumar and mr. N.K.Sarin are right.

mr kiran is right, i m agree with him

Dear Mohanji,

If the complainant and his witnesses are absent on the day fixed for hearing i.e., examination of the witnesses,  you  ask the court by filing an application to acquit you as provided u/s 256 Cr.P.C., which reads, "Non-Appearance or death of complainant:-  (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day".  In your case, the complainant and his witnesses are absent continuously and the proceedings are stalled due to absence of the complainant and his witness.   Hence, you have a right  to ask the Magistrate to dismiss the complaint and acquit you   I hope you all the best,  and if you want any further help, you may contact a local lawyer and further information from me.

Yours,

K.VENKATESH GUPTA

ADVOCATE

H.No: 1-1-16/1/2/A

JAWAHARNAGAR, R.T.C. CROSS ROADS, HYDERABAD

Ph.No: 040-27650240/09885808021

venkateshgupta_kande@yahoo.co.in

In a case under section 138 of Negotiable Instruments Act,1881 when a complainant is absent on the date of hearing the magistrate if he is satisfied that the presence of the complainant is not essential on the date of hearing he can proceed with the case by dispensing with the personal appearance of the complainant.

If the complainant has adduced his evidence and his personal attendace is not essential on the date of hearing as he has completed his evidence the magistratew shall pass orders on the basis of the documents submitted by the complainant and by perusing his evidence in trial.

The magistrate cannot mechanically dismiss the complaint on the sole ground of abscence of the complainant that too without issuing a notice from court.

PLEASE TAKE UP THE ADVICE OF YOUR LAWYER . DON'T CONDUCT THE CASE IN PERSON WHICH WILL BE HARMFUL AS YOU DON'T HAVE REQUISITE LEGAL KNOWLEDGE.

Dear All,

The accused may apply for dismissal of the complainant due to non-presence of complainant on several consecutive occasions.

BUT technically THE ACCUSED HAS NO RIGHT TO APPLY FOR  "ACQUITAL", from the case.  AND neither the magistrate has the jurisdiction to "ACQUIT" the accused in a dismissal matter, involving non-presence of complainant.

Dismissal of a complaint is one thing ...

AND

Acquital in a complaint is another thing. There is no such thing as "default" acquital or conviction.

(NOTE : u/s 138,  offence is expressely implied and not presumed)

(in the presence of dishonoured cheque, the contrary has to proved by the accused to obtain acquital)

Acquital is possible ONLY AFTER completion of Trial and not before.

Dismissal before actual completion of Trial is not Acquital.

Acquital or Conviction is a matter of legal deliberation done DURING the Trial.  If matter is dismissed before / during Trial process, then it is neither acquital or conviction.

Technically when a complaint is dismissed and closed,  then there is no accused left,  but legally it still does not imply that the accused is acquitted.

ANYWAY, the above is just my twisted opinion.  Meanwhile ...

Keep Smiling ... HemantAgarwal

09820174108

There are many aspects in 139 cases and any real smart advocate can bring the complainant in trouble.

It will be defficult for in person  litigants.

As you say cross is closed, so you have good case for aquital. Go on asking for heavy costs on each date and far want of cross examination the complainant has no case.So if the case is not dismissed you can ask for acquital at this point alone. But take help of senor advocate.

There are many aspects in 139 cases and any real smart advocate can bring the complainant in trouble.

It will be defficult for in person  litigants.

As you say cross is closed, so you have good case for aquital. Go on asking for heavy costs on each date and far want of cross examination the complainant has no case.So if the case is not dismissed you can ask for acquital at this point alone. But take help of senor advocate.