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CASE NO.:

Appeal (crl.) 311 of 2008

PETITIONER:

S. Anand

RESPONDENT:

Vasumathi Chandrasekar

DATE OF JUDGMENT: 14/02/2008

BENCH:

S.B. Sinha & V.S. Sirpurkar

JUDGMENT:

J U D G M E N T

[Arising out of SLP (Crl.) No. 3772 of 2007]

S.B. SINHA, J :

1. Leave granted.

2. Appellant was being prosecuted in the Court of Metropolitan

Magistrate, Saidapet, Chennai for alleged commission of an offence under

Section 138 of the Negotiable Instruments Act (for short \023the Act\024) on the

basis of a complaint petition filed by the respondent herein.

3. In the said proceedings, witnesses on behalf of the prosecution had

been examined. Complainant closed her case. A date was fixed for

examination of the defence witness and argument on 10.04.2006.

However, the appellant filed an application for cross-examination of

the complainant herself which was rejected. A revision application was filed

thereagainst in the Court of the Sessions Judge.

In the said revision application, no order of stay was passed. Whereas

the appellant had continuously remained present before the Trial Judge, the

complainant remained absent.

4. On or about 18.04.2006, the appellant filed an application for his

acquittal on the ground of absence of the complainant. By an order dated

24.04.2006, the learned Metropolitan Magistrate acquitted the accused under

Section 256(1) of the Code of Criminal Procedure stating:

\023Complainant absent. No representation for

several hearings. Accused present. Petition u/s

256(1) Cr. P.C. is allowed. Complainant

continuously absent from the hearing date 3.3.05.

Hence, Complainant called three times. Neither

the complainant nor his counsel represent before

the Court till 5.30 p.m. CW1 examined. Hence

Accused is acquitted u/s 256(1) of Cr.P.C.\024

5. An appeal was preferred thereagainst before the High Court. The

same was allowed relying on or on the basis of a decision of this Court in

Associated Cement Co. Ltd. v. Keshvanand [(1998) 1 SCC 687 : AIR 1998

SC 536].

6. We may, at the outset, notice that before passing the impugned order,

the High Court did not choose to serve notice upon the appellant opining that

no useful purpose would be served in keeping the appeal pending and one G.

Vinodkumar was appointed as a legal aid counsel. Aggrieved thereby, the

appellant is before us.

7. It was submitted by Mr. Anand, appearing in person, that the

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complainant having remained absent for more than one year, the High Court

ought not to have interfered with the discretionary jurisdiction exercised by

the learned Metropolitan Magistrate, particularly when he had been

appearing in person and the complainant not only executed a power of

attorney in favour of another, a lawyer was also appointed.

Mr. Anand would submit that it was obligatory on the part of the

advocate who is an agent of his client to appear on the dates of hearing,

more so when an accused had been appearing in person and remained

present in court for all the days of hearing. In any event, it was urged, the

High Court committed a serious error in disposing of the appeal only upon

hearing a legal aid counsel and even the submissions made by him had not

been noticed.

8. Mr. A. Regunathan, learned senior counsel appearing on behalf of the

respondent, however, submitted that in view of the fact that the matter was

adjourned for examination of DWs, the learned Magistrate could not have

exercised its jurisdiction under Section 256 of the Code of Criminal

Procedure.

9. Chapter XX of the Code of Criminal Procedure deals with trial of

summons cases by Magistrates.

Section 256 of the Code reads as under:

\023256. Non-appearance or death of complainant. \027

(1) If the summons has been issued on complaint,

and on the day appointed for the app