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2006 DIGILAW 474 (MP)

Jai Kumar Jain v. Vijay Prakash Vijaywargiya

2006-03-31

S.A.NAQVI

body2006
JUDGMENT 1. Appellant Jai Kumar Jain preferred this criminal appeal aggrieved by the impugned order dated 25.11.2002 passed by Additional Chief Judicial Magistrate, Guna in Criminal Case No. 383/2002, whereby dismissing the private complaint filed by Jai Kumar Jain under section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") acquitted the respondent No. 1 Vijay Prakash Vijaywargiya of the offence charged. 2. Respondent No. 2 State is a formal party in this criminal appeal. Appellant had like a private complaint against the respondent No. I-accused Vijay Prakash Vijaywargiya under section 138 of the Act which was registered as Criminal Case No. 383/2002. On 8.10.2002 case was fixed for examination of accused and on 25.11.2002 it was fixed for filing an application under section 311 of CrPC by appellant-complainant. On 25.11.2002 complainant-appellant and his counsel were absent and at about 4.40 p.m. private complaint was dismissed for non-appearance of complainant and respondent No. 1 was acquitted of the offence under section 138 of the Act. Aggrieved by the impugned order, appellant filed this criminal appeal. 3. It has been argued by learned counsel for the appellant that impugned order is arbitrary and against the law. Evidence of appellant-complainant has been closed and case was fixed for examination of accused on 8.10.2002. On 8.10.2002 on the request of complainant, case was fixed for filing an application under section 311 of CrPC, but his counsel wrongly noted the date as 29.11.2002. Consequently, neither the complainant nor his counsel appeared on 25.11.2002 and his private complaint was dismissed under section 256 of CrPC and respondent No. I-accused was acquitted. Learned trial Court committed illegality and perversity in passing the impugned order and counsel for appellant prayed to allow criminal appeal and set aside the impugned order. 4. Per contra, learned counsel for the respondent No. 1 supported the impugned order and prayed for dismissal of the appeal. 5. It is not disputed that offence under section 138 of the Act is triable as summons case. Evidence of prosecution-complainant has been closed and case was fixed on 8.10.2002 for examination of accused. On 8.10.2002 appellant-complainant prays time to file application under section 311 of CrPC which was allowed by learned trial Court and the case was fixed for that purpose on 25.11.2002. Evidence of prosecution-complainant has been closed and case was fixed on 8.10.2002 for examination of accused. On 8.10.2002 appellant-complainant prays time to file application under section 311 of CrPC which was allowed by learned trial Court and the case was fixed for that purpose on 25.11.2002. But on 25.11.2002 neither the appellant complainant nor his counsel appeared and consequently his private complaint was dismissed for non-appearance of complainant-appellant and respondent No. I-accused has been acquitted of the offence under section 138 of the Act. 6. As per section 256 (1) of CrPC, if on any appointed day for the appearance of the accused, or any subsequent day thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate has power to acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Magistrate has discretion to adjourn the hearing of case to some other day, if he thinks some proper reason for that. If Court thinks that in a situation it is proper to adjourn the hearing then Magistrate shall not acquit the accused and adjourn the case to next date. It is duty cast on the Court that if on a particular day complainant is absent, the Court must consider whether the personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But, if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. In the present case, on previous dates complainant used to appear before the trial Court. On 8.10.2002 case was fixed for examination of the accused and on the request of the complainant case was adjourned for 25.11.2002 for tiling application under section 311 of the CrPC by appellant. In the present case, on previous dates complainant used to appear before the trial Court. On 8.10.2002 case was fixed for examination of the accused and on the request of the complainant case was adjourned for 25.11.2002 for tiling application under section 311 of the CrPC by appellant. I am of the considered view that when substantial piece of evidence has been recorded and the case was fixed for examination of accused on 8.10.2002, learned trial Court was not justified in dismissing the private complaint for non-appearance of complainant on 25.11.2002. At the most, it could have been done by the learned trial Court that the case could have been fixed for examination of accused and Court could have proceeded further on the date of examination of accused, the presence of the complainant was not necessary. 7. In 1998 SCC (Cri) 475 [Associated Cement Co. Ltd. v. Keshavanand], it has been held by Hon'ble Supreme Court that due to non-appearance of complainant, Magistrate not justified in acquitting the accused unless presence of complainant on the date of hearing found necessary. Discretion to acquit the accused or proceed with the trial must be exercised judicially and fairly and Magistrate not justified in acquitting the accused particularly when the complainant and an other witness had already been examined. Hon'ble Supreme Court allowed the criminal appeal and set aside the order of acquittal. In [2003 (1) Vidhi Bhasvar 231 = 2003 (2) MPU 523], Right Services, Ratlam v. Chhotu Bhaiya Road Lines, Ratlam it has been held by Single Bench of M.P. High Court that when Court has already taken cognizance of the offence complaint under section 138 of the Negotiable Instruments Act and has also summoned the respondent-accused by a bailable warrant, complainant having stake in matter complaint need not be dismissed immediately in absence of complainant. Even before recording evidence, only on the stage of appearance of accused learned Single Bench opined that learned trial Court has not used its discretion judicially and set aside the order of acquittal. 8. On going through the record and impugned order, I am of the view that the impugned order is arbitrary, illegal and perverse. Learned trial Court has not used its discretion in passing the impugned order judicially and committed jurisdictional error in passing the impugned order. Impugned order is not sustainable in law as per above discussion. Consequently, criminal appeal is allowed. Learned trial Court has not used its discretion in passing the impugned order judicially and committed jurisdictional error in passing the impugned order. Impugned order is not sustainable in law as per above discussion. Consequently, criminal appeal is allowed. Impugned order dated 25.11.2002 dismissing the complaint and acquitting the respondent No.1 accused are hereby set aside. The complaint is restored to its original number and trial Court is directed to proceed with the trial of the case in accordance with law. Parties are directed to appear before the trial Court on 25.4.2006. 9. Record of the trial Court be sent back immediately.