2002 ALL MR (Cri) 1341
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.G. DESHPANDE, J.
M/S. Lloyds Finance Limited Vs. M/S. Skg Solvex Ltd. & Ors.
Criminal Application No. 16 of 2002
14th February, 2002
Petitioner Counsel: Mr. S. V. MARWADI, VIJAYA MISTRY
Respondent Counsel: Mr. K. V. SASTE
Criminal P.C. (1973), S.256 - Dismissal of complaint for non-appearance of complainant - Complaint filed under S.138 of N.I. Act - Complainant remaining absent continuously even after issue of process - Case called at 11.30 a.m. and 3.30 p.m. - Complaint dismissed in view of absence of complainant - Dismissal proper.
Negotiable Instruments Act (1881) S.138.
In the instant case, the roznama clearly shows that the complainant was throughout absent right from 16-6-1999. (This is apart from his remaining absent on number of earlier occasions). He was again absent on 5-11-1999, 26-4-2000, 9-8-2000, 17-1-2001, 1-6-2001, and on the date on 24-10-2001 when Magistrate called out the complaint/case twice at 11.30 a.m. and 3.30 p.m. after the Magistrate has ordered issue of process. The Roznama shows that the Magistrate had ordered issuance of process on 7-8-1998 and the matter was adjourned to 16-11-1998 it was for the complainant to look after his case, to process the matter and see that the accused is served. If the accused was not served inspite of the efforts of the complainant, it was for him to take appropriate steps. Complainant cannot be permitted to contend that it is for the court to take care of his case, he cannot be permitted to remain absent for months together and then argue before the court that inspite of non appearance of the complainant, the court should look after the case and take appropriate steps. In this case the conduct of the complainant is totally negligent and does not deserve any interference.
1998 ALL MR (Cri) 689 (S.C.) - Followed. [Para 3]
Cases Cited:
Associated Cement Co. Ltd. Vs. Keshvanand, 1998 ALL MR (Cri) 689 (S.C.)=(1998) 1 SCC 687 [Para 2]
JUDGMENT
JUDGMENT :- Heard Mr. Marwadi for the appellant. Appellant had filed a Complaint/Case before the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai, under section 138 of the Negotiable Instruments Act. The said Complaint/Case came to be dismissed by the Magistrate on account of the absence of the complainant appellant on 24-10-2001 and hence this application for leave to appeal against acquittal.
2. Counsel for the appellant Mr. Marwadi relied upon a judgment of the Supreme Court (reported in (1998) 1 Supreme Court Cases 687 Associated Cement Co. Ltd. Vs. Keshvanand) and Section 256 of the Criminal Procedure Code and contended that the accused had not appeared in matter and therefore it was not obligatory upon the complainant to remain present because according to him matter could not have been posted for hearing unless the accused had appeared. Nor the plea of the accused could have been recorded by the Magistrate unless the accused was present. The judgment of the Supreme Court cited by him reported in (1998) 1 Supreme Court Cases 687 Associated Cement Co. Ltd Vs. Keshvanand, has considered Section 256 of the Criminal Procedure Code in para 17 of the judgment. Para 17 reads as under :
"17. Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice."
It will be clear from the aforesaid judgment whether it is a fit case for the Magistrate to dismiss the complaint and acquit the accused has to be decided by the Magistrate from the facts of the case. There is absolutely no justification in the contention of Mr. Marwadi when he says that till the appearance of the accused it is not obligatory upon the complainant to remain present.
3. The roznama, copy of which is filed along with this application clearly shows that the complainant was throughout absent right from 16-6-1999. (This is apart from his remaining absent on number of earlier occasions). He was again absent on 5-11-1999, 26-4-2000, 9-8-2000, 17-1-2001, 1-6-2001, and on the date on 24-10-2001 when Magistrate called out the complaint/case twice at 11.30 a.m. and 3.30 p.m. after the Magistrate has ordered issue of process. The Roznama shows that the Magistrate had ordered issuance of process on 7-8-1998 and the matter was adjourned to 16-11-1998 it was for the complainant to look after his case, to process the matter and see that the accused is served. If the accused was not served inspite of the efforts of the complainant, it was for him to take appropriate steps. Complainant cannot be permitted to contend that it is for the court to take care of his case, he cannot be permitted to remain absent for months together and then argue before the court that inspite of non appearance of the complainant, the court should look after the case and take appropriate steps. In this case the conduct of the complaint is totally negligent and does not deserve any interference. In view of the above, application dismissed.