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BABUBHAI THAKKAR (CEO)     08 August 2011

Applicant/petitioner can be changed???

Under 138 Negotiable Instrument act the complain was filed in lower court against me. The manager of the firm was petitioner for the complain. The manager never provided any evidance and remains absent in procedding. Lower court quashed the complain and in judgement it was noted no evidance provided inspite of repeated adjornment and applicant was not remaining  present.

The firm is registered firm . Manager has left the firm . Now owner has filed Criminal Miscellaneous Application in High Court for condolence of delay .

As I inquired the origional applicant can only file this CMA in court. Not the owner. The applicant can not be altered for the CMA.????Is it right ??? if right then as per which provision he can not file ????or he can file.???let me know the provision details and if possible details of the judgements regarding this matter.


 3 Replies

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     09 August 2011

It depends what were the pleadings in the original complaint.

Even otherwise since the case is dismissed due to non appearnance hence delay condonation not possible.

THANKACHAN V P (Advocate & Notary)     09 August 2011





2008 (6) Scale 450 : 2008 (5) SCC 535 : 2008 (4) JT 593 : 2008 (2) SCC(Cri) 645 : 2008 (6) SCR 1236 : 2008 AIR(SC) 2066 : 2008 CrLJ(SC) 2625 : 2008 AIR(SCW) 2824 : 2008 Legal Eagle 538 : 2008 AIOL 538


Before : S.B.Sinha :  Lokeshwar Singh Panta


S.Rama Krishna


S.Rami Reddy (D) by his Lrs.& Ors.


Case No. : Criminal Appeal No. 755 of 2008


Date of Decision : 29-Apr-2008




Code of Criminal Procedure, 1973 -- Sections 256(1) Proviso, 256(2), 378(4) -- Negotiable Instruments Act, 1881 -- Section 138 r/w Section 142 -- Non-appearance or death of complainant -- Appeal in case of acquittal -- Dishonour of cheque -- Complaint -- Complainant dead -- Application for substitution made -- No order passed on such application -- For around 13 months and about 14 dates nobody represented complainant -- For reason of such non-attendance order of acquittal made by Magistrate exercising its jurisdiction under Section 256 of Code -- Appeal before High Court -- Acquittal set aside -- One more opportunity given by High Court to respondents(Appellants therein) with observation that any lis between parties shall be decided on merits rather than on technicalities -- Thus, present appeal -- Contentions heard, provisions perused -- Held: discretion exercised by Magistrate u/Section 256(1) proper -- Court observed that High Court exercised its jurisdiction u/Section 378 and it ought to have exercised it keeping in view limited role it had to play in the matter -- Finding of High Court held to be baseless and unsupported by any precedent, thus unreasoned -- If two views are possible when dealing with order of acquittal, judgment should not ordinarily be interfered -- Speedy trial: fundamental right of accused -- Impugned order unsustainable -- Set aside -- Appeal allowed.


Held : 1st: Section 256 of Cr.P.C. empowers a Magistrate to pass an order of acquittal on non-appearance or death of complainant. The complaint petition was filed in the year 2001. Rami Reddy died in 2003. A large number of dates were fixed for hearing of the case. Although, on some dates, the respondents were either present in court in person or were represented by their Advocate, but as noticed hereinbefore, continuously for about 15 dates fixed for hearing, they remained absent.

The ingredients of Section 256(1) are: (i) that summons must have been issued on a complaint, (ii) the Magistrate should be of the opinion that for some reasons, it is not proper to adjourn the hearing of the case to some other date; and (iii) the date on which the order u/Section 256(1) can be passed is the day appointed for appearance of the accused or any day subsequent thereto, to which the hearing of the case has been adjourned.

It is not a case where the proviso appended to Sub-Section (1) of 256 of the Code was applicable.

The matter remained pending for more than five years. It was obligatory on the part of the respondents to press their application for substitution. They did not file attendance of their witnesses. The case was fixed for hearing.

The learned Magistrate in terms of Sub-Section (1) of Section 256 exercised wide jurisdiction. Although an order of acquittal is of immense significance, there cannot be any doubt or dispute whatsoever that the discretion in this case had been properly exercised by the learned Magistrate.

The provisions of Section 256(1) mandate the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out the discretion with great care and caution. The conduct of complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period.

Held: The High was exercising its jurisdiction under Sub-section (4) of Section 378 of Code of Criminal Procedure. The appeal preferred by the respondents was against a judgement of acquittal. The High Court should have, therefore, exercised its jurisdiction keeping in view the limited role it had to play in the matter.
The High Court failed to take into consideration the fact that it was dealing with an order of acquittal and, thus, the principle of law, which was required to be applied was that, if two views are possible, a judgement of acquittal should not ordinarily be interfered with.
     1. Code of Criminal Procedure,1973,  S.256(1)
     2. Negotiable Instruments Act,1881,  S.142
     3. Negotiable Instruments Act,1881,  S.138
     4. Code of Criminal Procedure,1973,  S.256(2)
     5. Code of Criminal Procedure,1973,  S.378(4)

THANKACHAN V P (Advocate & Notary)     09 August 2011

As the firm is  a legal person I do not find any illegality in filing CMA but it may not stand on other grounds which you have shown above.

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