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2009 DIGILAW 698 (MP)

Uma Dubey v. Roopesh Kumar Makkar

2009-06-17

R.C.MISHRA

body2009
ORDER 1. Arguments heard. 2. This is an application under section 378 (4) of the Code of Criminal Procedure, for grant of leave to appeal against the order of acquittal in respect of the offence punishable under section 138 of the Negotiable Instruments Act, 1881. The order was passed on 28.8.2003 by Shri Upender Kumar Singh, ACJM, Jabalpur in Complaint Case No. 718/2003 (earlier registered as Case No. 743/1997) while dismissing the complaint in dafault under section 25(j( 1) of the Code. 3. Considering the fact that on 28.8.2003, the case was fixed for recording of the remaining evidence of the complainant/applicant, leave to appeal is granted. 4. Taking into consideration the facts and circumstances of the case, no formal registration of a case as Criminal Appeal is necessary. 5. With consent, the appeal is finally heard. 6. According to the applicant, it was due to a wrong noting of the date by the clerk to his counsel that she had remained unrepresented on 28.8.2003. To substantiate the explanation, reference has been made to the corresponding entries in the diary of her advocate. However, learned counsel for the respondent, placing reliance on these entries, has questioned the correctness of the explanation for non-appearance on the date of hearing but an elaborate enquiry into the matter is not at all necessary as fact of the matter is that the complaint was dismissed at the stage when the evidence of the complainant and her husband Chandra Mohan Dubey had already been recorded. 7. In summons case, it is imperative on the part of the complainant to remain present on every day of hearing unless his personal appearance is duly dispensed with by the Court. In other words, the appearance of Advocate, in absence exemption order, does not amount to appearance of the complainant within the meaning of section 256 (1) of the Code. Further, as explained by the apex Court in S. Rama Krishna v. S. Rami Reddy, AIR 2008 SC 2066 , there exists a distinction between a civil case and a criminal case. Speedy trial is a fundamental right of an accused. The order passed by the competent Court of law as also the provisions of the Code of Criminal Procedure must be construed having regard to the constitutional scheme and the legal principles in mind. 8. Speedy trial is a fundamental right of an accused. The order passed by the competent Court of law as also the provisions of the Code of Criminal Procedure must be construed having regard to the constitutional scheme and the legal principles in mind. 8. The disturbing feature of the case on hand is that the complaint was filed as early on 15.5.1996 and after getting the evidence of Chandra Mohan Dubey recorded on 3.8.2000, the complainant had availed of a series of adjournments for adducing the remaining evidence. 9. Be that as it may, law is well settled on the point that the discretion to dismiss the complaint on the technical ground of non-appearance of the complainant should be exercised judicially and fairly without impairing the cause of administration of criminal justice (See. Associated Cement Co. Ltd. v. Keshvanand), AIR 1998 SC 596 that was followed in S. Anand v. Vasumathi Chandresakar, (2004) 4 SCC 67. Accordingly, the learned Magistrate, instead of taking recourse to a shortcut, ought to have proceeded to decide the complaint on merits in the light of the evidence already brought on record by the complainant. 10. The appeal is, therefore, allowed and the impugned order of acquittal is hereby set aside. The matter is remanded to the trial Court with a direction to proceed from the stage where it had reached before the order under challenge was passed. However, no further adjournment shall be granted to the complainant to produce the remaining evidence. 11. Parties are also directed to remain present before the Court of CJM, Jabalpur on 29.7.2009, which is fixed with the consent of the parties as the final date for recording of the remaining prosecution evidence. 12. Record of the trial Court be returned immediately along with the copy of the order.