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2009(1) Bankmann 523 (Kar.)
KARNATAKA HIGH COURT
A.S. Pachhapure, J.
Vinod Sequiera —Appellant
versus
Bahaunji @ G.M. Hussain
Kunhi —Respondent
Criminal Appeal No. 338 of 2008
Decided on 23.10.2008
Counsel for the Parties:
For the Petitioner:P. Karunakar, Advocate.
IMPORTANT POINT
Proviso to Section 256 CrPC provides that in case if Magistrate of opinion that personal attendance of complainant is not necessary, he can dispense with his presence and there is nothing as such to dismiss complaint for non-prosecution or for non-appearance.
Headnote:Criminal Procedure Code, 1973—Section 256—Dismissal of complaint for offence under Section 138 of Negotiable Instruments Act for default in prosecution—Accused was summoned and on the date of appearance both complainant and accused were prayed exemption—On the adjourned date same request for exemption from appearance was made from both sides but Magistrate found complainant defaulter in prosecution of complaint and dismissed complaint—Impugned order was illegal, liable to be set aside.
Held: The proviso provides that in case if the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he can dispense with his presence. As could be seen from the proviso, there is nothing as such to dismiss the complaint for non-prosecution or for non-appearance. What the Magistrate ought to have done was to acquit the accused in case if the complainant is absent for any unjust reason. It is relevant to note that on the date when the complaint came to be dismissed, the accused was absent and in the absence of the accused, the proceedings could not have been continued.
The provisions of Section 273 of the Cr.P.C., contemplate that the evidence has to be recorded in the presence of the accused. So, there was nothing in the application filed by the accused to record the evidence in his absence. In the absence of the accused, the hearing could not have been done and when it was so, the proviso to Section 256 of the Cr.P.C. is very much applicable and when the personal attendance of the complaint was not essential and his evidence could not have been recorded, as the accused himself has absent on the day, the question of dismissal does not arise for consideration. Furthermore, if the Magistrate was of the opinion that the complainant was absent for any unjust reason, he could have acquitted the accused, but no order of acquittal was passed by the learned Magistrate under the impugned order. Furthermore, a complaint cannot be dismissed for non-payment of costs.
So, taking consideration all these grounds, I am of the opinion that the order impugned is illegal and the appeal deserves to be allowed. (Paras 5 & 6)
A.S. Pachhapure, J.—The appellant has challenged the order of dismissal of his complaint for non-prosecution filed against the respondent for the charge under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”).
2. The facts relevant for the purpose of this appeal are as under:
The appellant filed the complaint under Section 200 of the Criminal Procedure Code, 1973 against the respondent for taking action under Section 138 of the Act alleging that the respondent borrowed loan of Rs. 60,000 in May 2003 and in turn issued a cheque dated 30.8.2003 for an amount of Rs. 60,000 towards the repayment of the debt. The cheque was submitted to the. Bank for encashment and it returned with an endorsement of insufficient funds. Later the appellant issued notice and though the notice was served to the respondent the amount was not paid. In the circumstances, the appellant approached the Trial Court with the complaint on the abovesaid facts.
3. After taking cognizance, summons was issued to the respondent, who appeared through a Counsel and on 27.11.2007 both the accused and the appellant were absent. Exemption petition was field for the accused and an application was filed on behalf of the complainant under Section 256 of the Cr.P.C. to dispense with his presence. The said application came to be allowed on payment of costs of Rs. 200 and the matter was adjourned to 27.11.2007. On which day the accused was absent. The exemption petition for the accused was filed and so also the appellant was absent and an application under Section 256 of the Cr.P.C. was filed for dispensing with his presence on that day. The learned Magistrate perused the application and considering the fact that the cost ordered on 21.11.2007 was not paid and holding that the appellant was not interested to prosecute the case rejected the application and dismissed the complaint for non-appearance of the complainant and for non-prosecution. Aggrieved by the said order, this appeal has been filed.
I have heard the learned counsel for the appellant. Though the respondent was served, he is absent.
4. The point that arise for my consideration is:
“Whether the impugned order dismissing the complaint for non-prosecution is illegal and perverse?”
5. As could be seen from the provisions under Section 256 of the Cr.P.C., the consequences of non-appearance or the death of the complainant has been provided. The said section reads as under:
“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.”
The provision does not say anywhere that the complaint can be dismissed for non-prosecution. What the section contemplates is that on the appointed day or on the subsequent day, wherein the case is adjourned for hearing if the complainant does not appear the Magistrate shall, notwithstanding anything contained acquit the accused, unless for some reason he thinks to adjourn the case for hearing to some other day. Furthermore, the proviso provides that in case if the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he can dispense with his presence. As could be seen from the proviso, there i
