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2019 DIGILAW 1947 (ALL)

Pramod Tyagi v. State of U. P.

2019-08-14

RAJUL BHARGAVA

body2019
JUDGMENT : RAJUL BHARGAVA, J. 1. As per the officer report dated 15.2.2019, notice issued to opposite party no.2 was received personally. Thereafter, several dates were fixed and no one appeared on behalf of opposite party no.2 despite service of notice. The Court has no option but to decide the appeal with the assistance of learned counsel for the applicant and learned A.G.A. for the State. 2. Heard Sri Pawan Kumar Tiwari, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record. 3. Since, no response has been filed by opposite party no.2 on the leave to appeal application, the Court with the assistance of learned counsel for the applicant and learned A.G.A. has gone through the record and the Court is of the opinion that it is a fit case for grant of leave to appeal. Accordingly, the present application for leave to appeal is allowed. Now, the Court proceeds to dispose of the appeal on merits. 4. The present criminal appeal has been filed against the judgement and order dated 30.10.2018 passed by learned Additional Civil Judge (Senior Division)-IIIrd, Ghaziabad passed in Complaint Case No.225 of 2017 (Pramod Tyagi v. M/s Ptatinum Facility & Management Services), under Section 138 of Negotiable Instruments Act, P.S. Muradnagar, District- Ghaziabad, whereby the learned Magistrate acquitted the accused-opposite party no.2 under Section 256 Cr.P.C. on account of absence of applicant-complainant on that date. 5. Brief facts of the case are that the applicant filed a complaint under Section 138 N.I. Act against the opposite party no.2 along with the requisite documents after compliance of mandatory provisions as contained under the aforesaid Sections before the Magistrate. The court issued summons to opposite party no.2 fixing 24.7.2017 for his appearance. On 24.7.2017 both the parties were not present and the case was posted for 18.9.2017 for appearance of opposite party no.2 as well as the applicant. In the meantime, opposite party no.2 appeared before the court and was granted bail on 13.9.2017. In para 10 of the affidavit filed in support of the appeal, it is stated that opposite party no.2 continued to seek adjournments and ultimately on 26.7.2018 non-bailable warrant was issued against opposite party no.2. In the meantime, opposite party no.2 appeared before the court and was granted bail on 13.9.2017. In para 10 of the affidavit filed in support of the appeal, it is stated that opposite party no.2 continued to seek adjournments and ultimately on 26.7.2018 non-bailable warrant was issued against opposite party no.2. On 16.8.2018, the opposite party no.2 appeared before the court for recalling the non-bailable warrant and the court recalled the order issuing non-bailable warrant on opposite party no.2 furnishing a personal bond of Rs.20,000/- and next date was fixed on 11.9.2018. On 11.9.2018, exemption application was moved on behalf of the applicant and the accused-opposite party no.2 and then the case was fixed for 23.10.2018 on which date the applicant remained absent and the court fixed 30.10.2018. On 30.10.2018 as neither the applicant-complainant nor the opposite party no.2-accused was present and, thus, the court while recording that the first informant is absent and in exercise of power under Section 256 Cr.P.C., the proceedings of complaint case were dropped and the accused-opposite party no.2 was acquitted. 6. Submission of the learned counsel for the applicant is that the impugned order dated 30.10.2018 is out and out illegal for two reasons. Firstly, that on 11.9.2018 exemption application was moved on behalf of the applicant and accused-opposite party no.2 and the next date fixed was 23.10.2018 for evidence. The counsel for the applicant inadvertently noted that next date fixed was 23.11.2018 in his advocate diary whose photostat copy has been annexed as Annexure-2 to the affidavit. At present, there is no rebuttal as opposite party no.2 has not put an appearance or has engaged any counsel. It is further argued that since a wrong date was noted by his lawyer, the applicant neither appeared on 23.10.2018 nor on 30.10.2018 on which date the learned Magistrate on account of absence of the applicant-complainant acquitted the accused-opposite party no.2 under Section 256 Cr.P.C. It has been argued that there was no wilful default on the part of the applicant in not appearing on 30.10.2018. 7. For appreciating the second submission of learned counsel for the applicant, Section 256 Cr.P.C. is quoted as under:- "256. Non- appearance or death of complainant. 7. For appreciating the second submission of learned counsel for the applicant, Section 256 Cr.P.C. is quoted 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." 8. Learned counsel has argued that impugned order and order-sheet reflect that the accused-opposite party no.2 was also not present on 30.10.2018 and, thus, in view of the proviso of Section 256 Cr.P.C. 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 appearance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. It is argued that on 30.10.2018 merely because the applicant-complainant was not present, the learned Magistrate should not have acquitted the accused under Section 256 Cr.P.C. without recording that the personal attendance of the complainant was necessary on that date and as already stated above that the accused-opposite party no.2 was also not present and even if the applicant-complainant had appeared on that date, his statement could not have been recorded in absence of the accused or his counsel. 9. This Court is also of the view that the purpose of including the provision in the nature of 256 Cr.P.C. is to afford some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. 9. This Court is also of the view that the purpose of including the provision in the nature of 256 Cr.P.C. is to afford some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum. 10. The bare reading of 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 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. 11. 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. 11. While considering the situation of the case as on 30.10.2018, from the facts narrated above, I have no manner of doubt that the learned Magistrate should not have resorted to the axing process, particularly in view of the fact that the accused was also not present on that date and, therefore, he could very well have adjourned the hearing of the case to some other day and may have dispensed with his attendance. 12. In view of above, the learned Magistrate should not have acquitted the opposite party no.2 exercising the power under Section 256 Cr.P.C. in the peculiar facts of the case. Therefore, the impugned order of acquittal dated 30.10.2018 passed by learned Additional Civil Judge (Senior Division)-IIIrd, Ghaziabad in the aforesaid complaint case is, hereby, set-aside. The present criminal appeal is, accordingly, allowed. 13. The learned Magistrate shall issue notice to both the sides to appear on a particular date fixed and would proceed further from the stage where it has reached before the order of acquittal was passed and decide the case as expeditiously as possible preferably within a period of six months from the date of production of certified copy of this order, if there is no legal impediment. 14. Office is directed to communicate the order to the court concerned.