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2005 (1) Bankmann 111
RAJASTHAN HIGH COURT
H.R. Panwar, J.
M/s. Laxmi Steel
Industries — Appellant
versus
State & Anr. — Respondent
S.B. Criminal Leave to Appeal
Nos. 143/04 & 144/04
Decided on 3.9.2004
Counsel for the parties:
For the Appellant: Mr. Dron Kaushik, Ad-vocate.
For the State:Mr. Ashok Upadhayya, Advocate.
For the Respondent No. 2.:Mr. Pankaj Sharma, Advocate.
IMPORTANT POINT
In a complaint case during trial if complainant failed to appear for his evidence despite sufficient opportunities, trial court was justified to close the case and acquit the accused.
Headnote:Criminal Procedure Code, 1973—Section 256—Non-appearance of complainant—Order of acquittal of accused—Leave to appeal—Accused was summoned for offence under Section 138 of Negotiable Instruments Act when cheque for Rs. 95,000/- had bounced—Charge was framed on 21.11.2001 and trial commenced—In next five adjourments complainant failed to appear and no evidence was examined despite last opportunity warning and Court then closed complainant’s evidence and acquitted accused—In given facts and circumstances, trial court was fully justified in acquitting accused—Not a fit case to grant leave to appeal.
Held: If the situation does not justify the case being adjourned, the court is free to dismiss the complaint and acquit the accused. On the given set of facts, as noticed above, if the case in hand is examined, then there was no occasion for the Magistrate to adjourn the hearing in absence of the complainant and his counsel as also the complainant’s witnesses. It was not the situation before the trial court to hold that the personal attendance of the complainant is not necessary as the complainant was the witness in the case and the matter was posted for various dates for recording the statement of the complainant and his witnesses, and therefore, the presence of the complainant was necessary. In absence of the complainant and his witnesses on the date fixed for the complainant’s evidence, the trial court could not have progressed the case any further and therefore, the situation did not justify to adjourn the case, and the trial court was fully justified in acquitting the accused/second respondent for want of evidence.
(Para 14)
Result: Application for leave to appeal dismissed.
H.R. Panwar, J.—Both these criminal leave to appeals arise out of disputes between the same parties and involve common questions of law and facts, therefore, with the consent of the learned counsel for the parties, the same have been heard together and are being decided by this common Order.
2. Both these criminal leave to appeals under Section 378(4) are directed against the Order dated 7.1.2003 passed by the Chief Judicial Magistrate, Hanumangarh (in short the “trial court”, hereinafter) in complaint Cases No. 141/01 and 140/01 respectively, whereby the trial court acquitted accused second respondent Surendra Pal Singh of the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short “the Act” hereinafter0. Aggrieved by the Order of acquittal impugned, the complainant seeks leave to appeals to this court.
3. I have heard learned counsel for the appellant and the learned counsel appearing for the accused second respondent. It was a complainant case by the private firm therefore, learned Public Prosecutor has nothing to say in the matter. I have carefully gone through the material placed on record.
4. The facts which are relevant and necessary are being taken from the Complaint Case No. 141/01 since the dates are almost common in both these cases.
5. Briefly stated the facts of the case are that the appellant filed a complaint under Section 138 of the Act on 22.2.2001 against second respondent Surendra Pal Singh inter alia alleging therein that the second respondent is running an account with the appellant firm and obtained loans from the appellant firm on different dates in terms of cash and goods. The second respondent issued a cheque No. 0163594 dated 15.1.2001 for a sum of Rs. 95,000 in favour of the appellant firm. The cheque in question, on being presented to the bank on 15.1.2001 itself, was dishonoured for insufficient amount in the account of the accused second respondent. A notice, as envisaged under Section 138(b) of the Act, was issued on 27.1.2001 making a demand for payment of said amount of the cheque. The accused second respondent failed to pay the amount within 15 days from the receipt of the notice dated 27.1.2001, and therefore, a complaint was filed by the appellant before the trial court under Section 138 of the Act. By Order dated 23.2.2001, the trial court took cognizance of the offence and summoned the accused second respondent. On 20.7.2001, the accused second respondent appeared before the trail court and was released on bail and the matter was fixed for framing the charge on 9.8.2001. On 9.8.01 accused second respondent appeared, however, the complainant failed to appear, his personal appearance on that date was exempted on an application filed by the counsel for the appellant and the matter was posted to 21.11.2001 for framing of the charge. On 21.11.2001 also, the complainant failed to appear and his personal appearance was exempted on an application moved by his counsel. However, the accused second respondent was present on that date and the substance of charges was read over to him. The matter was posted for complainant’s evidence on 31.1.2002. On 31.1.2002 neither the complainant appeared nor any of his witness was present and the matter was posted to 26.3.2002 for complainant’s evidence. On 26.3.2002 also, the complainant failed to appear. However, on an application moved by his counsel, his personal appearance was exempted. The matter was posted for complainant’s evidence on 27.5.2002. On 27.5.2002 again, the complainant failed to appear. However, accused/second respondent was present and the matter was posted to 17.7.2002. On 17.7.2002 neither the complainant nor the accused second respondent appeared and on the applications of respective counsel for the parties, their personal appearance were exempted and the matter was posted to 12.9.2002. On 12.9.2002 also, the complainant and the accused second respondent did not appear and their personal appearance were exempted and
