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2012 DIGILAW 77 (CHH)

MANOJ AGRAWAL v. SURYABHAN SINGH

2012-03-02

PRITINKER DIWAKER

body2012
JUDGMENT Pritinker Diwaker, J. [1] This appeal is directed against the impugned order dated 10.12.2010 passed by learned Judicial Magistrate First Class, Kota dismissing the Criminal Case No. 558 of 2010 for want of prosecution as a result of which respondents have been acquitted. [2] Brief facts of the case are that on 07.09.2010 a complaint case was filed by the appellant/complainant under Section 138 of the Negotiable Instruments Act alleging in it that a cheque for Rs. 1,85,000 issued by the respondents has been dishonoured and therefore they have committed an offence. The said case was duly registered by the Court on 15.09.2010 and notices were directed to be issued to the respondents. The respondent No. 1 Suryabhan Singh appeared before the Court below on 20.10.2010 and was granted bail by the Court below. On 22.11.2010 the Court again issued notices to respondent No. 2 Manna Lal Yadav and the next date was given as 10.12.2010. On 10.12.2010 at 12.45 p.m. the case was taken up by the Court and on the said date the appellant, his counsel and respondent No. 2, Manna Lal Yadav were absent but respondent No. 1 Suryabhan Singh was the only person who was present in the Court. The learned trial Judge has dismissed the case for non-prosecution under section 256 of the Cr. P. C. and has acquitted the respondents. Hence, the present appeal. [3] Contention of Shri Agrawal, learned counsel appearing for the appellant is that on 10.12.2010, the case was listed for the presence of respondent No.2 Manna Lal Yadav and even if the appellant and his counsel were not present the Court below ought not to have dismissed the case under Section 256 of the Code of Criminal Procedure. It has been argued that the Court below has taken a very harsh view while dismissing the complaint case itself and therefore the impugned order may be set aside and the matter may be remanded back to the Court below. [4] On the other hand opposing the arguments of Shri Agrawal it has been argued by Shri Kaiwartya, learned counsel appearing for the respondents that as the appellant failed to appear before the Court below, the Court below was left with no other option but to dismiss the case under section 256 of Cr. P. C. and the said provision permits the Court to pass such an order. P. C. and the said provision permits the Court to pass such an order. [5] Heard counsel for the parties and perused the record. [6] The complaint filed under Section 138 of the Negotiable Instruments Act is triable under Chapter XX as a trial of summons cases by Magistrate. The procedure required to be followed in case of non-appearance of complainant or death of complainant, has been provided under section 256 of the Code, which reads as under:- "256. Non-appearance or death of complainant - (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to 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 complainant is due to his death." A bare reading of the above provision makes it clear that the power vested in the Magistrate in this section is discretionary. Accordingly, either he may dismiss the complaint or adjourn the case. However, it is a settled legal position that this discretion should be exercised judiciously and not arbitrarily. [7] On account of singular default in appearance on the part of the complainant, the dismissal of the complaint under section 138 of the Negotiable Instruments Act does not seem to be proper. If the complaint filed under section 138 of the Act is dismissed in such a manner, the very purpose of enactment of the said section would be defeated. The strict and unjust attitude adopted by the Magistrate would lead to failure of justice. The Court below should have seen the fact that two constraints are imposed on the Court for exercising the power under section 256 of Cr. The strict and unjust attitude adopted by the Magistrate would lead to failure of justice. The Court below should have seen the fact that two constraints are imposed on the Court for exercising the power under section 256 of Cr. P. C. First - if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Secondly when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether 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 proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judiciously and fairly without impairing the cause of administration of criminal justice. [8] In the case in hand admittedly on 10.12.2010 the case was fixed for recording the presence of accused/respondent No. 2, Manna Lal Yadav and thus even if the appellant and his counsel were absent the Court below was not justified in dismissing the complaint. Moreover, the Court below has dismissed the complaint at 12.45 p.m. itself whereas it ought to have waited at least till second half for the appellant and his counsel and then could have passed the order in accordance with law. Thus the order impugned is liable to be quashed and accordingly the same is quashed. [9] Consequently, appeal succeeds and is allowed. The complaint case shall stand restored to its original number and the trial Court is directed to proceed with the trial and decide the case in accordance with law. As all the parties are represented here, they are directed to appear before the trial Court on 10th April, 2012. [9] Consequently, appeal succeeds and is allowed. The complaint case shall stand restored to its original number and the trial Court is directed to proceed with the trial and decide the case in accordance with law. As all the parties are represented here, they are directed to appear before the trial Court on 10th April, 2012. [10] The learned Magistrate would make every endeavour to decide the case as expeditiously as possible without being influenced by the order of this Court. The Registry is directed to send back the record of the trial Court forthwith along with the copy of this order. Appeal allowed.