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Madhya Pradesh High Court · body

2022 DIGILAW 574 (MP)

Vivek Choudhary v. Shri Narendra Rai

2022-04-07

DINESH KUMAR PALIWAL

body2022
ORDER 1. This appeal is finally heard at motion stage. 2. This appeal is filed under Section 378 (4) of Cr.P.C. against the order dated 04.05.2018 whereby complaint case No. 29825/2006 (Vivek Choudhary Vs. Narendra Rai) under Section 138 of Negotiable Instrument Act (hereinafter referred to as N.I. Act) has been dismissed in the absence of complainant. 3. Learned counsel for the appellant has submitted that appellant filed a complaint under Section 138 of N.I. Act before the learned JMFC on 01.11.2006. Complainant could not appear before the trial Court on 04.05.2018, in his absent learned trial Court dismissed the complaint case under Section 256 of Cr.P.C. and acquitted the respondent/accused. He further submitted that learned Magistrate has not taken into note that on 12.04.2018, respondent/accused had paid cheque amount of Rs. 50,000/- to the appellant/complainant. There was a possibility of compromise between the parties due to which complainant did not appear in the Court on 04.05.2018. Learned JMFC has dismissed the complaint case without assigning proper reasons. Complainant was pursuing complaint case for the last 12 years for getting his money back from the respondent/accused. Though he got his money of Rs.50,000/- back but he still has to take remaining amount back from the respondent/accused. On account of compromise between the parties, appellant/complainant had not appeared before the trial Court on 04.05.2018. In such fact situation learned JMFC, Jabalpur instead of dismissing the complaint was required to adjourn the same. Impugned order is bad in law. Thus, it has been prayed that order of dismissal of complaint dated 04.05.2018 being erroneous and against the very concept of provision of Section 256 of Cr.P.C. be set aside. 4. It is not in dispute that trial Court has dismissed the private complaint in the absence of the complainant having filed under Section 138 of N.I. Act and acquitted the respondent/accused. The case of the appellant, in nutshell is that he filed a complaint under Section 138 of the N.I. Act which was registered and fixed for cross-examination of complainant but on 04.05.2018 complainant could not appear in the Court, in the absence of complainant, his complaint was dismissed and respondent/accused was acquitted. The case of the appellant, in nutshell is that he filed a complaint under Section 138 of the N.I. Act which was registered and fixed for cross-examination of complainant but on 04.05.2018 complainant could not appear in the Court, in the absence of complainant, his complaint was dismissed and respondent/accused was acquitted. It is not in dispute that on 04.05.2018, when the complaint case was listed for cross-examination of complainant, he was not present in the Court and in the absence of complainant, learned trial Court dismissed his complaint case and acquitted the respondent/accused. No doubt, the complaint filed under Section 138 of N.I. Act is triable under Chapter XX as a trial of summon cases by Magistrate. The procedure which is to be followed in a case of non-appearance of complainant or death of the 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. 5. This Section applies to summons cases only. If the summons has been issued on the complaint and on the date of hearing if the complainant does not appear the Magistrate shall acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. It is tried to law that on one singular default in appearance on the part of the complainant, the dismissal of the complaint under Section 138 of N.I. Act is not proper. It is tried to law that on one singular default in appearance on the part of the complainant, the dismissal of the complaint under Section 138 of N.I. Act is not proper. If the complainant was having sufficient cause for his absence for singular default that should be believed and a liberal view be adopted. 6. On a perusal of the order sheet dated 12.04.2018, it is revealed that day complainant was not present in the Court, case was adjourned for 24.04.2018. Again on 24.04.2018, case was fixed for complainant evidence but complainant did not turn up for cross examination and on that date Court gave a last chance for complainant evidence and case was adjourned for 04.05.2018. On 04.05.2018 again, complainant and his counsel did not appear before the trial Court. Learned trial Court noted that due to absence of complainant for cross-examination the progress of case is held up and on the date of cross examination of complainant his personal appearance is necessary. Therefore, he did not find it fit to adjourn 10 years old case for evidence. Consequently, learned JMFC, Jabalpur dismissed complaint under Section 256 of Cr.P. and acquitted the respondent/accused. 7. O n perusal of the order sheets of trial Court, it is apparent that in this case appellant/complainant failed to appear before the trial Court for cross- examination on consecutive three dates. On 24.04.2018 a date, prior to dismissal of the complaint on 04.05.2018 learned trial Court made it clear in the order sheet that last chance is given to appellant/complainant for evidence but despite that complainant failed to appear before trial Court for cross examination on 04.05.2018 due to which complaint was dismissed. 8. Thus, it is not a case of singular default, on a day when the complainant was absent. It is a case in which due to absence of complainant, case was adjourned thrice at the stage of complainant evidence and complainant failed to appear for cross examination even when last opportunity was given by the Court. Then, learned trial Court dismissed the complaint of complainant. 9. Under the provision of 256 of the Cr.P.C. 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. Then, learned trial Court dismissed the complaint of complainant. 9. Under the provision of 256 of the Cr.P.C. 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 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. 10. In this case, complainant remain absent on three consecutive dates that too, when case was fixed for his cross examination. He failed to appear before the Court even on the date when the last chance was given to the complainant for evidence. In such fact situation, I am of the view that learned Magistrate has not committed any error in acquitting the respondent/accused for the absence of the complainant on the date when the case was posted for recording evidence and the actual presence of the complainant was essential for the due prosecution of a 10 years old matters. Thus, learned Magistrate has not committed any error in dismissing the complaint as consecutive absence of complainant on three occasions and that too at the stage of his cross-examination was deliberated and to protect the proceeding for harassment of the accused. Learned Magistrate is fully justified in dismissing the complaint. 11. Thus, I find no material in the arguments advanced by learned counsel for the appellant. Thus, this appeal being sans merit is dismissed.