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2012 DIGILAW 624 (CAL)

Shyam Commercial Co. v. State

2012-07-13

KANCHAN CHAKRABORTY

body2012
Judgment 1. IN the report of the Department dated 7.5.2012, it appears that Mr. Amarta Ghosh, learned Counsel appearing for the appellant collected paper books on 19.12.2011 and the learned Counsel for the O.P.No.1 collected paper book on 16.12.2011. But the learned Counsel for the opposite party has neither appeared on the previous occasion nor any subsequent date. He is found absent also today on repeated calls. 2. THIS appeal is pertaining to the complaint case lodged in the year 2006 under Section 138 of the N. I. Act. It was dismissed under Section 256 of the Cr. P.C. 3. THIS Court thinks that this appeal cannot be left pending for uncertain period because of non-appearance of the learned Counsel for the opposite party no.1. Therefore, the appeal is taken up today for hearing. Heard Mr. Ghosh, learned Counsel appearing for the appellant. 4. AS stated earlier, this appeal is pertaining to a complaint case filed on 8.6.2006 for prosecuting the opposite party No.1 under Section 138 of the N. I. Act. The complainant, i.e., the appellant herein remained absent for a considerable period of time. The opposite party no.1 filed two applications in the Court of the learned Magistrate praying for examination of hand writing by hand writing Expert and dismissal of the complaint under Section 256 of the Cr. P.C. The learned Magistrate by an order dated 1.7.2009 rejected both the applications. On 5.11.2009, the complainant was examined- in-chief and cross-examined partly. Some documents were also admitted into evidence and marked exhibits on behalf of the complainant. Thereafter, the complainant (appellant) had taken some adjournments, which was granted by the Court. On 22.2.2011, the learned Magistrate rejected the prayer for adjournment made on behalf of the complainant and dismissed the case under Section 256 of the Cr. P.C. The complainant being aggrieved by the said order has come up with this appeal and assailed the said order mainly on the ground that the learned Court could not have dismissed the case without giving any opportunity of hearing to the complainant/appellant to adduce further evidence. 5. THE appellant had made the photo copy of the entire case record as annexures to the memo of appeal. It appears therefrom that the complainant, i.e., the appellant, no doubt, did not act diligently and seriously. 5. THE appellant had made the photo copy of the entire case record as annexures to the memo of appeal. It appears therefrom that the complainant, i.e., the appellant, no doubt, did not act diligently and seriously. In his presence, the learned Magistrate rejected the prayer of the respondent no.1 (accused) for appointment of hand writing Expert and dismissal of the case under Section 256 of the Cr. P. C. vide order dated 1.7.2009. Thereafter, on the next date, the complainant was examined-in-chief and cross examined in part on 5.11.2009. The complainant thereafter had taken five consecutive adjournments and on 22.2.2011 also prayed for time. The learned Trial Court recorded his dissatisfaction in this matter and declined to allow the prayer for adjournment. Ultimately, the learned Court dismissed the case and acquitted the accused under Section 256 of the Cr. P. C. 6. IT is true that under Section 256 of the Cr. P. C., the Court can pass such an order in such circumstances. There is, apparently, no illegality and infirmity in the order. There cannot be any room of doubt that the appellant/complainant did not act diligently and seriously and only because of his absence, the case was dragged. However, one should learn from mistake. Before dismissing the case and acquitting the accused under Section 256 of the Cr. P. C., the Court could have imposed costs on the complainant and warned him by giving a last chance. It is good that the complainant has realised his position and wanted to revive the case and preferred this appeal. 7. TAKING everything into consideration, I think that the appellant should be given another opportunity for adducing his evidence seriously and diligently. 8. ACCORDINGLY, I allow the appeal with costs of Rs.500/-. The order impugned is set aside with a direction on the learned Trial Court that the trial should start where it ended by the impugned order after realising the costs of Rs.500/- from the appellant. 9. IT is further directed that the appellant should appear in the Court by 1st August, 2012 and deposit the cost of Rs.500/-. Upon depositing the cost, the Court will issue notice upon the accused fixing a date of their appearance and thereafter fix a specific date for recording evidence of the complainant/appellant and his witnesses. 9. IT is further directed that the appellant should appear in the Court by 1st August, 2012 and deposit the cost of Rs.500/-. Upon depositing the cost, the Court will issue notice upon the accused fixing a date of their appearance and thereafter fix a specific date for recording evidence of the complainant/appellant and his witnesses. The learned Magistrate should give the appellant two dates, in all, to complete his evidence and thereafter, to proceed with the case in accordance with law. 10. THE appeal is, thus, disposed of. Urgent Photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary Formalities.