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RAJASTHAN HIGH COURT
SHASHI KANT SHARMA, J.
S.B. Criminal Appeal No. 463 of 2001
Decided on 27.9.2001
MITTAL BOOK AND STATIONERS, DURGA PURA, JAIPUR
versus
MAHENDRA SINGH SOLANKI
Counsel for the Parties :
For the Appellant :Mr. Sanjay Singhal, Advocate. For the Respondent: None.
The central legal point established in the judgment is the need for the court to exercise its discretion judicially and fairly in dismissing a complaint based on the absence of the complainant, especially when the presence of the complainant was not necessary on a particular day.
Headnote:
Negotiable Instruments Act - Summon Case - Section 138 - Section 256 of Cr. P.C. - The court discussed the relevance of Section 256 of Cr. P.C. and its interpretation in the context of a summon case under Section 138 of the Negotiable Instruments Act. The court highlighted the protection afforded to the accused against dilatory tactics of the complainant and emphasized the need for the court to exercise its discretion judicially and fairly in dismissing a complaint based on the absence of the complainant.
Fact of the Case:
The appellant filed a complaint against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. The lower court dismissed the complaint on the premise of the complainant's absence during the defence evidence stage.
Finding of the Court:
The court found that the lower court's dismissal of the complaint based on the absence of the complainant was illegal and set aside the impugned order, remanding the case back to the trial court for further trial.
Issues: The issue revolved around the legality of the lower court's dismissal of the complaint due to the complainant's absence during the defence evidence stage.
Ratio Decidendi: The court emphasized the need for the lower court to exercise its discretion judicially and fairly in dismissing a complaint based on the absence of the complainant, especially when the presence of the complainant was not necessary on a particular day.
Final Decision: The appeal was allowed, and the impugned order was set aside, remanding the case back to the trial court for further trial.
Shashi Kant Sharma, J. - Instant appeal filed by complainant-appellant Mittal Book and Stationers, Durgapur, Jaipur is directed against the order dated 18th August, 2000 passed by learned Civil Judge (Jr. Division) and Judicial Magistrate, 1st Class, Sanganer whereby a complaint filed by the appellant was dismissed.
2. The relevant facts essential for the disposal of this appeal are as under :
This appellant filed one complaint against respondent Mahendra Singh Solanki for the offence punishable under Section 138 of Negotiable Instruments Act. The Lower Court took cognizance against the accused-respondent for the offence under Section 138 of Negotiable Instrument Act and accused appeared in the Court, As it was a summon case, so, substance of accusation was read over the accused. Accused pleaded not guilty and requested for the trial. Complainant examined himself and closed his evidence. Accused-respondent was examined under Section 313 Cr. P.C on 7th July, 2000 and case was fixed for 19th July, 2000 for defence evidence, on the day defence evidence was not produced and on the request of the accused, again the case was posted for defence evidence on 4th August, 2000, on that day due to some condolence, defence evidence could not be recorded and the case was adjourned for 18th August, 2000 for recording defence evidence and on 18th August, 2000, complainant did not appear in the Court but defence witness was present, therefore, the learned Lower Court dismissed the complaint. Against that order, this appeal is filed. Record of the Lower Court was called for. Arguments heard.
3. It is argued on behalf of the appellant-complainant that impugned order passed by Lower Court is absolutely illegal. It is contended that on that day, presence of the complainant was not necessary because prosecution witness was already examined and accused was already examined under Section 313, Cr. P.C. and case was posted for defence evidence therefore, Lower Court should not have dismissed the complaint on the premise that complainant was not present. It is argued that judgment of Hon'ble Supreme Court reported in 1(1998) CCR 82 (SC)=H(1998) SLT 28-1998(1) SCC 687 (Associated Cement Company Ltd. v. Keshvanand) is relevant in this case.
4. None was present on behalf of the respondent accused, therefore, arguments on behalf of respondent could not be heard.
5. I have examined entire record of the Lower Court and impugned order dated 18.8.2000 and relevant provisions of law. The case pending before Lower Court was a summon case. In this matter Section 256 of Cr. P.C. is relevant. Hon'ble Supreme Court has held in the case of Associated Cement Company Ltd. (supra) as under :
"Section 247 of the criminal Procedure Code, 1989 (Section 256 of new Code) affords 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 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.
Reading Section 247 of the Criminal Procedure Code, 1898 (Section 256 of new Code) in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. The 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. The 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 complainan
