THE HON’BLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.1063 of 2014

ORDER:

This Criminal Appeal is filed under Sections 378(4) of Cr.P.C.

assailing the order dated 02.03.2010 passed in C.C.No.621 of 2008 on the file of the XV Metropolitan Magistrate, Cyberabad at Medchal, Rangareddy District, wherein and whereby respondent No.2/accused was acquitted under Section 256 of Cr.P.C. due to the absence of appellant/complainant.

2 It is apt to reproduce relevant portion of the impugned order herein:

“ Accused is called present. Complainant is called absent. Learned Counsel for complainant filed petition under Section 256 Cr.P.C. It is coming for complainant side evidence. This Court not satisfied with the reason mentioned in the petition for extension of time since the complainant did not turn up despite specific direction on 26.02.2010. Hence, petition is dismissed.

Therefore, under these circumstances, Accused is acquitted under Section 256 Cr.P.C. due to the absence of complainant.”

3. In view of Section 143 of the Negotiable Instruments Act, 1881 (for short, ‘NI Act’) is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Cr.P.C. is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 of Cr.P.C. deals with a situation of non-appearance of the complainant.

4. Applicability of Section 256 Cr.P.C. in a complaint filed under Section 138 of NI Act has also been endorsed in the Judgment passed by Allahabad High Court in case Vinay Kumar v. State of U.P., [2007 Cri.L.J. 3161]

5. It is relevant to extract Section 256 Cr.P.C. herein:

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."

6. Section 256 Cr.P.C. provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainant from his personal attendance if it is found not necessary and to proceed with the case. Also, when the complainant is represented by a pleader or by the officer conducting the prosecution, the Magistrate may proceed with the case in absence of the complainant.

7. When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of the complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 of Cr.P.C., which reads as under:

"362. Court not to alter judgment. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

8. Keeping in view the effect of dismissal of complaint under Section 138 of the NI Act, the Apex Court in Associated Cement Co. Ltd. v. Keshvanand, [(1998) 1 SCC 687], after discussing the object and scope of Section 256 Cr.P.C, has held that, though, the Section affords protection to an accused against dilatory tactics on the part of the complainant, but, at the same time, it does not mean that if the complainant is absent,