S.256 CrPC | Dismissal For Non-Appearance Unjustified If Complainant Was Diligent & Unaware of Case Transfer: Rajasthan High Court - 2024-04-18

Court Reinstates Cheque Bounce Case Dismissed Due to Complainant's Absence After Unnotified Transfer

Jaipur: The Rajasthan High Court, in a significant ruling, has quashed an order by a Special Metropolitan Magistrate that dismissed a cheque bounce complaint for non-prosecution and acquitted the accused. Justice Anoop KumarDhand held that dismissing a complaint under Section 256 of the Criminal Procedure Code (Cr.P.C.) for the complainant's non-appearance is unjustified when the complainant had been diligent and was not informed about the case's transfer to a new court.

The appeal challenged the Magistrate's order dated 05.04.2022, which dismissed the complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) due to the complainant's absence.

Background of the Dispute

The complainant had filed a criminal complaint in 2013 after three cheques, each for Rs. 1,00,000/-, issued by the respondents, were dishonoured due to "insufficient funds." Cognizance was taken against the respondents on 03.09.2013. The case, initially before the Special Metropolitan Magistrate, NI Act Cases, No.3, Jaipur Metro , was subsequently transferred multiple times, landing eventually before the Special Metropolitan Magistrate (NI Act) Cases, No.12, Jaipur Metro politan-Ist, Headquarter Sanganer.

The complainant's counsel asserted consistent appearance before the courts from 2013 to 2021. Even when arrest warrants were issued for the accused on 12.11.2020 due to their non-appearance, the complainant's counsel remained present. However, the case was transferred from Metropolitan Magistrate No.17 to Metropolitan Magistrate No.12 on 05.08.2021, an order passed by the Chief Metropolitan Magistrate, Jaipur Metro -I, apparently without any intimation to the complainant. Consequently, the complainant failed to appear on several dates (20.11.2021, 24.11.2021, 27.01.2022, 28.02.2022, and 05.04.2022), leading to the dismissal of the complaint and acquittal of the accused on 05.04.2022 under Section 256 Cr.P.C.

Arguments Before the High Court

The appellant-complainant's counsel argued that the absence was bona fide, resulting from the lack of knowledge about the case transfer. It was highlighted that the complainant had been vigilant in prosecuting the case for years and even the accused were not appearing, necessitating arrest warrants.

Conversely, counsel for the accused-respondents contended that the complainant had failed to appear on multiple dates prior to the dismissal, and thus, the trial court committed no error in dismissing the complaint for want of prosecution.

Court's Analysis and Reasoning

Justice Dhand meticulously examined the circumstances, focusing on whether the Magistrate was justified in dismissing the complaint.

The Core Issue: Justification of Dismissal The "short question" for the Court's consideration was: > "whether in the facts and circumstances of this case, the learned Magistrate was justified in dismissing the criminal complaint for non-appearance of the complainant at the stage where the accused were summoned through warrants and the case was transferred... without any intimation to the complainant."

Lack of Intimation and Complainant's Diligence The Court noted that the case transfer order dated 05.04.2021 "was passed without any intimation to the complainant, hence he could not appear before the Court...". It emphasized the complainant's vigilance: > "Here in this case the counsel for the complainant remained present in the Court almost on each and every occasion since 2013 till 2021 and the complainant was quite vigilant in prosecuting the accused / respondents."

Interpretation of Section 256 Cr.P.C. The Court reproduced Section 256 Cr.P.C., which allows a Magistrate to acquit an accused if the complainant does not appear. However, it highlighted the proviso allowing the Magistrate to dispense with the complainant's attendance if represented by a pleader or if personal attendance is deemed unnecessary. The judgment stressed: > " Section 256 Cr.P.C. is an analogous provision and the same is evidently intended to prevent dilatory tactics on the part of the complainant... The power under this Section has to be used judicially. It is not proper to throw out a case in a hasty or thoughtless manner where the complainant has proved his bona fides and shown himself vigilant..."

Reliance on Precedents The Court referred to:

* Bijoy v. State of Kerala (2016 (2) KLT 427): This Kerala High Court ruling advised against hasty dismissals, advocating for recording reasons for absence and giving complainants a chance to appear, especially if represented by lawyers.

* The Associated Cement Co. Ltd. v. Keshvanand (1998 (1) SCC 687): The Supreme Court observed that Section 256 Cr.P.C. aims to deter dilatory tactics by complainants and protect accused from harassment, but "that does not mean if the complainant is absent, court has a duty to acquit the accused in invitum."

The High Court underscored: > "It is far too well settled position of law that the power of the Magistrate under Section 256 Cr.P.C to acquit an accused should be exercised judicially, based on a definite conclusion that the complainant no longer desires to prosecute the complaint. The power is not to be indiscriminately exercised whimsically and mechanically for the statistical purposes of removing a docket from its rack as it undermines the cause of justice."

Magistrate's Decision Deemed Unreasonable

The Court found that this was not a case of the complainant employing dilatory tactics. Instead, the complainant or their advocate had been regularly present from 2013 to 2021, and the case was at the stage of securing the accused's appearance when it was transferred without intimation.

> "Undisputedly, on the fateful day i.e. on 05.04.2022, neither the complainant was present for trial nor any order directing complainant to remain present was passed on the earlier occasion, therefore the learned Magistrate ought to have adjourned the complaint to a later date directing the complainant to positively remain present on the next date. Without adopting the above reasonable course and providing the complainant a fair opportunity, the learned Magistrate rejected the complaint... Such an action on the part of the Magistrate was unreasonable and irregular. The impulsive decision of the learned Magistrate has led to miscarriage of justice..."

Final Order and Directions

Concluding that the Magistrate was not justified in dismissing the complaint and acquitting the accused merely due to the complainant's non-appearance under these circumstances, the High Court:

* Quashed and set aside the impugned order dated 05.04.2022.

* Restored the proceedings to its original number on the file of the learned Magistrate. * Directed the trial court to proceed with the matter in accordance with law from the stage where it was when the dismissal order was passed.

* Directed the parties to appear before the trial Court on 16.05.2024.

This judgment reinforces the principle that procedural rules like Section 256 Cr.P.C. must be applied judiciously, ensuring fairness and preventing miscarriage of justice, particularly when a litigant's absence is attributable to a lack of proper intimation about case transfers.