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2008 DIGILAW 278 (GAU)

Naba Kamal Bhuyan v. Gulabchand Jain

2008-04-09

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. The Petitioner made, as complainant, a complaint, seeking prosecution of the opposite party herein, as accused, under Section 138 read with 142 of the Negotiable Instruments Act ('The N.I. Act'). 2. After recording statement of the Petitioner, as complainant, under Section 200, Code of Criminal Procedure, the learned Chief Judicial Magistrate, Kamrup, Guwahati, passed an order, on 20.1.2007, directing issuance of summons against the accused-Petitioner. The accused did not appear in the case since after passing of the order, dated 20.1.2007, aforementioned. Eventually, the case came to be fixed for necessary order on 28.3.2007. On the date, so fixed, i.e., on 28.3.2007, the complainant and also the accused remained absent without taking steps. In such circumstances, the learned court below passed an order, on 28.3.2007, dismissing the complaint for default and discharging the accused named in the complaint, Aggrieved by the order, dated 28.3.2007, the Petitioner filed the Criminal Revision No. 109(K)/2007. This revision has been dismissed by the judgment and order, dated 11.9.2007. In these circumstances, the complainant has made this application, under Section 482, Code of Criminal Procedure, seeking to get set aside not only the order, dated 11.9.2007, but also the order, dated 28.3.2007, and further to get the complaint restored. 3. Heard Mr. H.L. Maurya, learned Counsel for the complainant-Petitioner. None has appeared on behalf of the opposite party. 4. For the purpose of effective disposal of this application made under Section 482, Code of Criminal Procedure, a careful consideration of the provisions of Section 256, Code of Criminal Procedure is imperative. Section 256, Code of Criminal Procedure is, therefore, reproduced herein below: 156. None appearance or death of complainant.- (1) if the summons has been issued on the complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate, shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complaint is due to his death. 5. From a bare reading of the provisions of Section 256, Code of Criminal Procedure, what transpires is that when summons are issued to an accused and, on the date appointed for appearance of the accused or subsequent thereto, the complainant does not appear, the Magistrate is bound to acquit the accused unless, for some reason, he thinks it proper to adjourn the hearing of the case to some other day. 6. The provisions, contained in Section 256, Code of Criminal Procedure, make it abundantly clear that in a case triable by summons procedure, when a Magistrate issues summons on the basis of a complaint and, on the appointed date for appearance of the accused or on any date subsequent thereto, if the complainant does not appear, the Magistrate shall, ordinarily, acquit the accused. If the Magistrate opts not to acquit the accused, it is the duty of the Magistrate to assign cogent reasons for not doing so. The present one is a case, which is triable by summons procedure. 7. In the present case, summons had been issued to the accused on the basis of the complaint by the present Petitioner. Neither on the date fixed for appearance of the accused nor on any date thereafter, the complainant had appeared. In these circumstances, the learned court below passed the order, dated 28.3.2008, discharging the accused. In view of the fact that the order, dated 28.3.2007, was passed dismissing the complaint, the learned court below ought to have, in consequence of such dismissal of the complaint, acquitted the accused. Though the learned Magistrate has mentioned, in the order, that the accused stands discharged, the fact remains that the dismissal of the complaint, in the context of the facts and attending circumstances of the present case, actually amounted to acquittal of the accused. The discharge of the accused-opposite party is, in fact and in law, his acquittal and such an acquittal cannot be set aside or interfered with by taking resort to Section 482, Code of Criminal Procedure, for, the Code of Criminal Procedure, embodies provisions for appeal against acquittal even in the cases arising out of a complaint case. 8. The discharge of the accused-opposite party is, in fact and in law, his acquittal and such an acquittal cannot be set aside or interfered with by taking resort to Section 482, Code of Criminal Procedure, for, the Code of Criminal Procedure, embodies provisions for appeal against acquittal even in the cases arising out of a complaint case. 8. In view of the above and in the interest of justice, this criminal petition is not entertained and the same shall accordingly stand dismissed. 9. The dismissal of this petition shall not debar the complainant from taking recourse to appropriate provisions of law in order to ventilate legally sustainable grievances, if any. Petition dismissed