Criminal Application No. 345 of 2001

24th April, 2001

Petitioner Counsel: Shri. R.R.MANTRI, Shri. S.G.BHARUKHA
Respondent Counsel: Shri. PATEL, Shri. JOYDEEP CHATTERJI

Cases Cited:
Smt. Ambiabai K. Killedar Vs. Kisan Ramchandra Nair, 1984(1) Bom.C.R. 446 [Para 3]
Associated Cement Co. Ltd. Vs. Keshavanand, AIR 1998 SC 596 [Para 4]
Shakri Automotive Enterprises Vs. Vasu Bhatia, 1998(1) Mah.L.R. 626 [Para 4]

JUDGMENT

JUDGMENT :- Heard learned counsel for the respective parties.

Rule.

By consent, rule is made returnable forthwith and the application is taken up for final hearing.

2. This is an application for leave to appeal by the original complainant against acquittal of the respondent no.2 - original accused in S.T.c. No.4500/99 by C.J.M.Jalna, vide order dated 3.1.2001.

3. Present petitioner had filed a private complaint on 25.8.1999 against the present respondent No.2 for an offence punishable under Section 138 of the Negotiable Instruments Act, claiming that the cheque for an amount of Rs.27,183 issued by the accused was dishonoured by the Bank on 24.6.1999.

The case has ended in an acquittal, not after its full hearing on merits, but under Section 256 of the Cr.P.C. 1973, as can be seen from the record, on 3.1.2001.

An application is filed at Exhibit 17 stating that the matter is fixed for evidence but the complainant is unable to attend as he was bed ridden. It was therefore, prayed that presence of the complainant may be dispensed with. After being invited to file say, Advocate of the accused opposed the application. He pointed out that the complainant was absent on the last date also and therefore, he prayed for rejection of the application.

Ultimately, it appears that at about 5 p.m., the Judge recorded the orders below application Exhibit 16 as well as below Exhibit 1 of the complaint. The judge has rejected the application for exemption of the complainant by observing that the complainant and his counsel, both are absent when repeatedly called, the matter was fixed for hearing and application was rejected for want of sufficient grounds. Consequently order is passed below Exhibit 1, wherein the Judge has observed that the complainant is absent, when called repeatedly upto 5 p.m., the accused and his advocate were present and were praying for dismissal of the complaint, and therefore, the learned Judge dismissed the complaint and pronounced acquittal of the accused.

It is this order of technical acquittal that is being sought to be appealed against and an application for leave to appeal is filed for the purpose.

3. Shri. Mantri arguing for the petitioner has urged that Section 256 cannot be used as a weapon to throw out the complainant and he should be given reasonable opportunity to place his matter before the court. He has placed reliance on the observations of the Bombay High Court in case of Smt. Ambiabai K. Killedar Vs. Kisan Ramchandra Nair (1984(1) Bom.C.R. 446).

4. While replying, Shri. Chatterji has claimed that this was not the first occasion when the complainant was absent. By relying upon the certified copy of the roznama, he claims that the complainant was absent on five occasions, including the day on which the complaint was dismissed and accused was acquitted. He also points out that the application for exemption on the ground of illness of complainant was not accompanied by the medical evidence and the Judge had passed dismissal order after waiting for the complainant upto 5 p.m. Relying upon the observations of the apex Court and Bombay High Court in the cases Associated Cement Co. Ltd., Vs. Keshvanand (AIR 1998 SC 596) and Shakri Automotive Enterprises Vs. Vasu Bhatia and another (1998(1) Mah.LR 626), Shri. Chatterji urged that the order of dismissal of complaint and acquittal of accused calls for no interference and therefore, leave to appeal may not be granted.

5. While relying upon the Ambiabai's case (supra), Shri Mantri has placed reliance on the contents in paragraphs 5 and 6 of the judgment. The Court has observed that under Section 256 of the Criminal Procedure Code, three courses are open in a case, where the complainant is absent on the date of hearing; i.e. (1) to acquit the accused, (2) to adjourn the case for future date or (3) dispense with the attendance of the complainant and proceed with the case. It was further observed that while maintaining the presumption of innocence of accused, the Court should not be harsh towards complainant. The circumstances in which the observations were made are available in paragraph no.6, which can usefully be quoted:

"In the instant case, the material on record clearly goes to show that the complainant was already present in Court along with her witnesses and had the learned Magistrate waited five minutes or so, the impugned order of acquittal would not have come to be passed."

In the reported case, when the matter was called out, the Advocate for the complainant was not available and the Advocate reached the Court within five minutes after the dismissal of the case.

Taking into consideration the distinction in the factual aspects of the matter at hands and the matter relied upon by Shri. Mantri, it is not possible to borrow the observations in the reported case in assistance for the petitioner's prayer to grant leave to file an appeal. In the reported case, it is said that the complainant vigilantly attended each and every date and even on the date fixed, she was present with her witnesses in the Court premises but the Advocate of the complainant reached the Court hall five minutes after dismissal of the complaint. As against this, in the matter at hands, the learned Judge appears to have repeatedly called for the complainant upto 5 p.m. and only thereafter, dismissed the complaint.

6. So far as reasons for the absence, although illness of the complainant, admittedly the application was not supported by any medical certificate. The medical certificate which is now filed along with the application for leave to appeal, obtained from Saraswat Hospital is dated 5.1.2001 and the certificate says "He is advised treatment for 1.1.2001 to 5.1.2001." Even this certificate obtained on 5.1.2001 does not support the contention in the application that the petitioner was bed ridden. If that was so, the certificate would have said that the petitioner is advised complete bed rest.

7. On reference to roznama there is no dispute that the complainant was absent on two dates, prior to recording of plea of the accused. The complainant was also absent on the date, plea of the accused was recorded i.e. on 6.10.2000. Although he was absent on 16/12/2000, the situation is somewhat mitigated because the Presiding Officer was also on leave and the matter was unlikely to be proceeded on that date. The fifth occasion when the complainant was absent was the date on which complaint was dismissed.

8. Shri. Chatterji has relied upon Associated Cement Company Case (supra) and especially the contents of paragraph no.17, which reads:

"What was the purpose of including a provision like S.247 in the old Code (or S.256 in the new Code). It 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 much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum."

The observations are not as much helpful to the respondent No.2 as felt by Advocate Shri. Chatterji. It is not mandatory that the Court must acquit the accused as soon as the complainant is absent. Even on referring to Section 256 of the Code of Criminal Procedure, it can be said that the Magistrate even in absence of the complainant has discretion to adjourn the matter for sufficient reasons.

In the matter of Shakri Automotive Enterprises (supra), the complainant and his Advocate were absent on 20.5.1997, when the matter was adjourned to 30.7.1997. As they were absent on 30.7.1997 also, the Magistrate dismissed the complaint. It was observed;

"The learned Magistrate had enough jurisdiction to pass the order of dismissal of the complaint under the provisions of section 256 of the Code of Cri. Procedure and no legal infirmity could be found in the order. One opportunity was given by the Magistrate. Thereafter if the Magistrate found it necessary to dismiss the complaint it cannot be stated that the Magistrate has not exercised his discretion properly."

Thus, if while dismissing the complaint, the Magistrate has used his discretion properly, the order need not be interfered with.

9. In the present case, Advocate Shri. Mantri has argued that absence of the complainant on 16/12/2000 need not be weighted as dilatory tactics since his client is resident of Jalna, he might have remained absent on learning the fact of Presiding officer being on leave. There is no denial that complainant was absent on five occasions and the fact remains that the complainant belongs to Jalna, the place where the Court is situated; whereas, the accused/respondent No.2 belongs to Moujpuri, some village in Jalna Taluka. Thus, it cannot be ignored that every absence of complainant was going to be harassment to the accused.

10. As far as reason for the absence as rightly pointed out by Shri. Chatterji, although, the complaint claimed to be bed ridden, the application was not supported by any medical evidence. Infact, as can be seen from the orders on the application and below Exhibit 1, not only the complainant but even his lawyer was not available, although repeatedly called. There is also nothing wrong if the learned Judge has taken cognizance of absence of complainant on previous two dates i.e. 16.12.2000 and 6.10.2000. Although on those dates presence of the complainant was not a must, the fact remains that on 3.1.2001 his presence was necessary since the matter was fixed for hearing and on that date it was his third consecutive absence.

In case, the learned Judge has disbelieved the ground for absence and therefore, dismissed the complaint due to absence of complainant, it is possible to say that the Magistrate has not used the discretion properly.

11. The acquittal, therefore, calls for no interference. The application for special leave to appeal is rejected. Rule discharged.

Application rejected.