Criminal Appeal No.338 of 2008

23rd October, 2008

Petitioner Counsel: Mr. P. KARUNAKAR

JUDGMENT

JUDGMENT :- The appellant has challenged the order of dismissal of his complaint for non-prosecution filed against the respondent for the charge under Sec.138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act").

2. The facts relevant for the purpose of this appeal are as under :

The appellant filed the complaint under Sec.200 of the Criminal Procedure Code, 1973 against the respondent for taking action under Sec.138 of the Act alleging that the respondent borrowed loan of Rs.60,000/- in May, 2003 and in turn issued a cheque dated 30.8.2003 for an amount of Rs.60,000/- towards the repayment of the debt. The cheque was submitted to the Bank for encashment and it returned with an endorsement of Sufficient Funds. Later the appellant issued notice and though the notice was served to the respondent the amount was not paid. In the circumstances, the appellant approached the Trial Court with the complaint on the above said facts.

3. After taking cognizance, summons was issued to the respondent, who appeared through a Counsel and on 27,11.2007 both the accused and the appellant were absent. Exemption petition was filed for the accused and an application was filed on behalf of the complainant under Sec.256 of the Cr.P.C. to dispense with his presence. The said application came to be allowed on payment of costs of Rs.200/- and the matter was adjourned to 27.11.2007. On which day the accused was absent. The exemption petition for the accused was filed and so also the appellant was absent and an application under Sec.256 of the Cr.P.C. was filed for dispensing with his presence on that day. The learned Magistrate perused the application and considering the fact that the cost ordered on 21.11.2007 was not paid and holding that the appellant was not interested to prosecute the case rejected the a application and dismissed the complaint for non-appearance of the complainant and for non-prosecution. Aggrieved by the said order, this appeal has been filed.

4. I have heard the learned counsel for the appellant. Though the respondent was served, he is absent.

5. The point that arise for my consideration is :

"Whether the impugned order dismissing the complaint for non-prosecution is illegal and perverse?"

6. As could be seen from the provisions under Sec.256 of the Cr.P.C., the consequences of non-appearance or the death of the complainant has been provided. The said Section reads as under :

"256.Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day :

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2)The provisions of sub-sec. (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

The provision does not say anywhere that the complaint can be dismissed for non-prosecution. What the section contemplates is that on the appointed day or on the subsequent day, wherein the case is adjourned for hearing if the complainant does not appear, the Magistrate shall, notwithstanding anything contained acquit the accused, unless for some reason he thinks to adjourn the case for hearing to some other day. Furthermore, the proviso provides that in case if the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, he can dispense with his presence. As could be seen from the proviso, there is nothing as such to dismiss the complaint for non-prosecution or for non-appearance. What the Magistrate ought to have done was to acquit the accused in case if the complainant is absent for any unjust reason. It is relevant to note that on the date when the complaint came to be dismissed, the accused was absent and in the absence of the accused, the proceedings could not have been continued.

7. The provisions of Sec.273 of the Cr.P.C. contemplate that the evidence has to be recorded in the presence of the accused. So, there was nothing in the application filed by the accused to record the evidence in his absence. In the absence of the accused the hearing could not have been done and when it was so, the proviso to Sec.256 of the Cr.P.C. is very much applicable and when the personal attendance of the complainant was not essential and his evidence could not have been recorded, as the accused himself was absent on the day, the question of dismissal does not arise for consideration. Furthermore, if the Magistrate was of the opinion that the complainant was absent for any unjust reason, he could have acquitted the accused, but no order of acquittal was passed by the learned Magistrate under the impugned order. Furthermore, a complaint cannot be dismissed for non-payment of costs.

So, taking consideration of all these grounds, I am of the opinion that the order impugned is illegal and the appeal deserves to b allowed. in the circumstances, I answer the point in affirmative and proceed to pass the following :

ORDER

The appeal is allowed. The order dated 27.11.2007 made in C.C. No.1639 of 2004 is set aside and the matter is remitted back to the Trial Court with a direction to the appellant to appear before the Trial Court on 18.11.2008 and the Trial Court shall proceed with the case in accordance with law after securing the presence of the respondent/accused.

Appeal allowed.