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2014 DIGILAW 661 (BOM)

Mahesh v. Rahul K. Durugkar

2014-03-11

M.L.TAHALIYANI

body2014
JUDGMENT 1. Heard learned Counsel Shri O.S. Harwani for the appellant, learned Counsel Shri A.J. Thakkar for respondent No.1 and learned Additional Public Prosecutor Shri T.A. Mirza for respondent No.2. 2. Admit. Heard finally by consent of the learned Counsel for the parties. 3. This appeal arises out of the order passed by the learned Judicial Magistrate First Class, Nagpur in Criminal Complaint Case No. 10677/2010 dismissing the complaint of the appellant and acquitting the accused/respondent No.1 of the offence punishable under Section 138 of the Negotiable Instruments Act. Section 256 of the Criminal Procedure Code runs 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.” 4. It is thus clear that the complaint can be dismissed under Section 256 of the Criminal Procedure Code, if the complainant does not appear and there are no reasons for the Magistrate to think it proper to adjourn the hearing of the case to some other day. The Hon'ble Supreme Court in the case of Associated Cement Co. Ltd. ..vs.. Keshvanand, reported at 1998(1) Cri.L.J. 856, has observed as to under what circumstances and in what manner the powers under Section 256 of the Criminal Procedure Code are to be exercised. Paragraph 18 of the said judgment runs as under :“ 18. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Paragraph 18 of the said judgment runs as under :“ 18. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, 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 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.” 5. In the present case, respondent No.1 had filed an application under Section 91 of the Criminal Procedure Code for production of certain documents by the appellant. Respondent No.1 wanted those documents for further cross-examination of the complainant/P.W.1. Paragraph 4 of the said application runs as under:- “4. In the circumstances, it becomes necessary to direct the complainant to produce the documents as stated in paragraph 3 above on record, which is able to accused to put forth his submission and material evidence during course of evidence and cross-examination of the complainant.” Respondent No.1 wanted nine documents to be produced by the appellant before the trial Court for further cross-examination of the appellant. It is thus clear that respondent No.1 could not have completed cross-examination of the appellant on the date when the complaint was dismissed because the application filed by respondent No.1 for production of documents was not yet decided. In the circumstances, it is abundantly clear that the attendance of the complainant was not very much necessary for progress of the case. In the circumstances, it is abundantly clear that the attendance of the complainant was not very much necessary for progress of the case. The Magistrate could have decided the application filed by respondent No.1 under Section 91 of the Criminal Procedure Code. The situation, in my opinion, did not justify the dismissal of the complaint. The discretion given to the Magistrate to my mind was used capriciously and not judiciously. Hence, the appeal is allowed. The order of the learned Judicial Magistrate First Class, Nagpur in Criminal Complaint Case No.10677/2010 dismissing the complaint and acquitting respondent No.1, is set aside. The learned Magistrate is directed to continue with the hearing of the complaint from the stage of cross-examination of P.W.1/complainant. It is made clear that the application filed by respondent No.1 under Section 91 of the Criminal Procedure Code has to be decided independently without being influenced by any observation made in the present judgment. The appeal stands disposed of accordingly.