Criminal Appeal No.462 of 2003

27th July, 2004

Petitioner Counsel: Shri. JOYDEEP CHATTERJEE
Respondent Counsel: Shri. M. M. PATIL

Cases Cited:
Associated Cement Co. Ltd. Vs. Keshavanand, AIR 1988 SC 596 [Para 5]

JUDGMENT

JUDGMENT :- Original complainant has filed the present appeal challenging the order dated 10-5-2002 passed by the learned Chief Judicial Magistrate Jalna.

2. Heard learned counsel for the respective parties at length. R & P is also called.

3. The appellant had filed a complaint before the learned Chief Judicial Magistrate, Jalna on 8-1-1998 contending that the complainant and accused are businessmen. The accused had purchased CTD round steel bars worth Rs.1,35,024/- under invoice dated 5-2-1998. Thereafter, under invoice dated 15-2-1998, the accused also purchased the same goods worth Rs.1,22,760/-. The goods were received by them.

It is contended that the accused had issued a cheque bearing No.035958 dated 15-9-1998 for the amount of Rs.17,240/- towards part payment, which was dishonored on 19-9-1998, as intimated by the Bank - the Jalna Peoples' Co-operative Bank Ltd., Jalna on 29-9-1998. The complainant had issued notice by registered post A.D. which was duly received by the accused but they did not reply.

The accused subsequently issued a cheque No.035957 drawn on Central Bank of India, Pune dated 15-10-1998 for Rs.1,22,760/-. Said cheque was dishonored for insufficient funds and it was intimated by the said bank under memo dated 3-11-1998. In the meantime, the accused accepted liability of delayed payment and travelling charges of Rs.22,610/- for which the complainant had issued a debit note 17-10-1998 to the accused.

Thereafter, again the accused issued a cheque No.111929 dated 17-10-1998 for Rs.30,000/- drawn on Sangli Bank Ltd., Pune which was again dishonored on 29-10-1998. The accused had again accepted their fault and their liability to pay Rs.49,630/- towards delayed payment, misc. expenses and travelling charges.

In short, three cheque amounting to Rs.1,22,760/-, Rs.30,000/- and Rs.15,000/- were dishonored and accused failed to make payment on/or before 10-12-1998. Accordingly, the complaint was filed.

4. The learned Judicial Magistrate F.C. dismissed the said complaint for non-prosecution on 10-5-2002. It is observed in the said order by the learned Chief Judicial Magistrate that the complainant has no more interest remained in the matter and even an application is not filed for adjournment on behalf of the complainant. Accordingly, the complaint under Section 138 of the Negotiable Instruments Act was dismissed for non-prosecution.

5. It is submitted by Shri. Chatterjee, learned Advocate for the appellant that this being an order under Section 256 of the Code of Criminal Procedure, only remedy available to the complainant is by way of filing an appeal as the order of dismissal of complaint for non-prosecution amounts to acquittal of accused. He placed reliance in support of this contention on the decision in the case of Associated Cement Co. Ltd. Vs. Keshavanand (AIR 1988 SC 596), wherein it is observed to the following effect :

"Two constraints are imposed on the Court for exercising the power under the S.256. 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. Second is, when then 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 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."

Relying on the said decision learned counsel for the appellant submitted that when the complaint was dismissed, the matter was not fixed for hearing, but the same was for recording the plea of the accused and the roznama also shows that the accused for one or the other reasons remained absent and in view of this position, according to him, when the presence of the complainant was not necessary on the day on which the complaint was dismissed the impugned order of learned Chief Judicial Magistrate is not proper in law.

6. I have gone through the roznama. It is apparently clear from its perusal that the matter was adjourned on serveal occasions on account of absence of the accused and the same was adjourned on the next day for recording plea of the accused. Even on the day on which the order was passed, it is apparently clear that the said matter was not fixed for hearing and in view of this position, I find that the order of dismissal of complaint for want of prosecution needs to be set aside and the matter needs to be remanned to the trial Court.

7. In the result, the appeal is allowed. Order dated 10-5-2002 dismissing the complaint (SCC No.134 of 1999) for non-prosecution passed by the Chief Judicial Magistrate, Jalna is set aside. SCC No.134 of 1999 is restored to its original number. The matter is remanded back to the court of Chief Judicial Magistrate, Jalna with direction to decide the same on merits by giving opportunity to the parties to lead evidence.

Respective parties are directed to appear before the Chief Judicial Magistrate, Jalna on 20-9-2004.

R & P returned forthwith.

Appeal allowed.