Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 340 (MP)

Mohd. Hanif Khan v. Ashok Goyal

2016-04-27

RAJENDRA MAHAJAN

body2016
ORDER : Rajendra Mahajan, J. The applicant has filed the application under Section 378(4) of the Cr.P.C. seeking leave to present an appeal against the impugned order of acquittal dated 07.09.2012, passed by the Fast Track Court of the JMFC, Bhopal (for short ‘the court’) in R.T. No. 51/09 the parties being Mohd. Hanif Khan V. Ashok Goyal, acquitting the respondent of the charge under Section 138 of the Negotiable Instruments Act, 1988 (for short ‘the Act’) dismissing the complaint in the absence of the applicant and his counsel. 2. Brief facts of the case for just and proper adjudication of the application are given below :- 2.1 The applicant has filed the complaint against the respondent for his prosecution under Section 138 of the Act and 420 of the IPC stating therein that his wife Smt. Nasreen Kausar sold an agricultural land of her ownership bearing survey No. 446/2/5, area measuring 2 acres and 8 decimal, situated at village Barkheda Nathu, Tehsil Huzur, district Bhopal. Out of the total sale-consideration, with the consent of his wife the respondent wrote him a cheque bearing No. 766375, dated 01.04.2008 of Rs. 5,64,000/- (for short ‘the cheque’) drawn on the State Bank of India, Branch Area, Colony, Bhopal. The cheque was dishonoured by the drawer bank on the ground that the respondent had instructed the bank not to cash the cheque. Thereafter, he gave the demand notice to the respondent in terms of Section 138 of the Act. Despite that, he has not made the payment of the cheque. Hence, the complaint. 2.2. Vide the order dated 03.01.2009, the complaint was registered under Section 138 of the Act. 2.3. On 27.05.2011, the learned JMFC framed the charge against the respondent under Section 138 of the Act. He denied the charge. Thereupon, the case was put on trial. 2.4. On 07.09.2012, the case was fixed for taking the applicant's evidence. Neither the applicant nor his counsel appeared before the trial court during the court hours. As a result, the learned JMFC dismissed the complaint at about 5:00 p.m. in their absence acquitting the respondent of the charge under Section 138 of the Act. 2.5. Feeling aggrieved thereby, the applicant filed the criminal revision No. 931/2012, Hanif Khan v. Ashok Goyal. Neither the applicant nor his counsel appeared before the trial court during the court hours. As a result, the learned JMFC dismissed the complaint at about 5:00 p.m. in their absence acquitting the respondent of the charge under Section 138 of the Act. 2.5. Feeling aggrieved thereby, the applicant filed the criminal revision No. 931/2012, Hanif Khan v. Ashok Goyal. Vide order dated 30.04.2013, the Nineth Additional Sessions Judge, Bhopal dismissed the revision holding that it is not maintainable in view of the provisions of Section 378(4) of the Cr.P.C. 2.6. Hence, this application. 3. The learned counsel for the applicant submitted that the case was initially registered in the regular court of JMFC. After formation of the Fast Track Courts of JMFC at Bhopal the case was transferred to one of the Fast Track Courts. This fact was not in the knowledge of him or his advocate for want of proper notification by the office of the District Judge, Bhopal. Therefore, on the date of impugned order, neither he nor his counsel was present. As such, their absence was bona fide. She further submitted that a huge amount is involved in the case. Under the circumstances, the case is required to be decided on merits to provide complete justice to the applicant. Hence, it is prayed that the leave to appeal be granted. 4. Per contra, the learned counsel for the respondent submitted that on the date of hearing just before the date of passing the impugned order, the trial court had given last opportunity to the applicant for submission of the evidence. Despite that the applicant and his counsel remain absent. Hence, the learned JMFC has rightly dismissed the complaint acquitting the respondent of the charge under Section 138 of the Act. 5. I have considered the submissions made by the learned counsel for the parties and perused the material on record. Undisputedly the trial of an offence punishable under Section 138 of the NI Act is held as per the provisions of Chapter-XX of the Code. In this case, Section 256 of the code is relevant, which provides for how the Magistrate would proceed on nonappearance of the complainant or his death during the trial. Undisputedly the trial of an offence punishable under Section 138 of the NI Act is held as per the provisions of Chapter-XX of the Code. In this case, Section 256 of the code is relevant, which provides for how the Magistrate would proceed on nonappearance of the complainant or his death during the trial. The Section is reproduced below with an objective to understand its provisions of it in right perspective :- Section 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 nonappearance of the complainant is due to his death. Upon the plain reading of the language of the Section, it is manifest that the power under Section 256 of the Code is discretionary in nature. Therefore, it cannot be stated as a rule of thumb that in each and every case where a complainant is absent, the complaint is necessarily dismissed and accused be acquitted mechanically. Hence, the requirement of this Section is that the Magistrate ought to exercise his discretion judiciously and fairly for the advancement of cause of administration of criminal justice and not for impairing it. 6. In view of the afore stated in the forgoing para, I am of the opinion that the learned JMFC committed an error in dismissing the complaint without taking into consideration the fact that a huge amount is involved in the case. Therefore, the complaint ought to have been decided on merits. 7. 6. In view of the afore stated in the forgoing para, I am of the opinion that the learned JMFC committed an error in dismissing the complaint without taking into consideration the fact that a huge amount is involved in the case. Therefore, the complaint ought to have been decided on merits. 7. Taking into consideration the huge amount involved in the case, the satisfactory explanation given by the applicant for his and his counsel's absence on the date of passing of the impugned order and in the interest of justice, the applicant is granted leave to appeal against the impugned order.