CASE NO.:

Appeal (crl.)  311 of 2008

 

PETITIONER:

S. Anand

 

RESPONDENT:

Vasumathi Chandrasekar

 

DATE OF JUDGMENT: 14/02/2008

 

BENCH:

S.B. Sinha & V.S. Sirpurkar

 

JUDGMENT:

J U D G M E N T

[Arising out of SLP (Crl.) No. 3772 of 2007]

S.B. SINHA,  J :

 

 

1.         Leave granted.

 

 

2.         Appellant was being prosecuted in the Court of Metropolitan

Magistrate, Saidapet, Chennai for alleged commission of an offence under

Section 138 of the Negotiable Instruments Act (for short the Act) on the

basis of a complaint petition filed by the respondent herein.

 

3.         In the said proceedings, witnesses on behalf of the prosecution had

been examined. Complainant closed her case.  A date was fixed for

examination of the defence witness and argument on 10.04.2006. 

     However, the appellant filed an application for cross-examination of

the complainant herself which was rejected. A revision application was filed

thereagainst in the Court of the Sessions Judge.

            In the said revision application, no order of stay was passed.  Whereas

the appellant had continuously remained present before the Trial Judge, the  

complainant remained absent. 

4.         On or about 18.04.2006, the appellant filed an application for his

acquittal on the ground of absence of the complainant.  By an order dated

24.04.2006, the learned Metropolitan Magistrate acquitted the accused under

Section 256(1) of the Code of Criminal Procedure stating:

 

Complainant absent.  No representation for

several hearings.  Accused present.  Petition u/s

256(1) Cr. P.C. is allowed.  Complainant

continuously absent from the hearing date 3.3.05. 

Hence, Complainant called three times.  Neither

the complainant nor his counsel represent before

the Court till 5.30 p.m.  CW1 examined.  Hence

Accused is acquitted u/s 256(1) of Cr.P.C.

 

 

5.         An appeal was preferred thereagainst before the High Court.  The

same was allowed relying on or on the basis of a decision of this Court in

Associated Cement Co. Ltd. v. Keshvanand [(1998) 1 SCC 687 : AIR 1998

SC 536].

 

6.         We may, at the outset, notice that before passing the impugned order,

the High Court did not choose to serve notice upon the appellant opining that

no useful purpose would be served in keeping the appeal pending and one G.

Vinodkumar was appointed as a legal aid counsel.    Aggrieved thereby, the

appellant is before us.

 

 7.        It was submitted by Mr. Anand, appearing in person, that the

complainant having remained absent for more than one year, the High Court

ought not to have interfered with the discretionary jurisdiction exercised by

the learned Metropolitan Magistrate, particularly when he had been

appearing in person and the complainant not only executed a power of

attorney in favour of another, a lawyer was also appointed. 

 

            Mr. Anand would submit that it was obligatory on the part of the

advocate who is an agent of his client to appear on the dates of hearing,

more so when an accused had been appearing in person and remained

present in court for all the days of hearing.  In any event, it was urged, the

High Court committed a serious error in disposing of the appeal only upon

hearing a legal aid counsel and even the submissions made by him had not

been noticed.

 

8.         Mr. A. Regunathan, learned senior counsel appearing on behalf of the

respondent, however, submitted that in view of the fact that the matter was

adjourned for examination of DWs, the learned Magistrate could not have

exercised its jurisdiction under Section 256 of the Code of Criminal

Procedure.

 

9.         Chapter XX of the Code of Criminal Procedure deals with trial of

summons cases by Magistrates. 

     Section 256 of the Code 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 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-section (1) shall, so far

as may be, apply also to cases where the non-

appearance of the complainant is due to his death.

 

 

10.       Section 256 of the Code provides for disposal of a complaint in

default.  It entails in acquittal.  But, the question which arises for

consideration is as to whether the said provision could have been resorted to

in the facts of the case as the witnesses on behalf of complainant have

already been examined. 

 

11.       The date was fixed for examining the defence witnesses.  Appellant

could have examined witnesses, if he wanted to do the same.  In that case,

the appearance of the complainant was not necessary.  It was for her to

cross-examine the witnesses examined on behalf of the defence.

 

12.       The accused was entitled to file an application under Section 311 of

the Code of Criminal Procedure.  Such an application was required to be

considered and disposed of by the learned Magistrate.  We have noticed

hereinbefore that the complainant did not examine herself as a witness.  She

was sought to be summoned again for cross-examination.  The said prayer

has not yet been allowed. But, that would not mean that on that ground the

court would exercise its discretionary jurisdiction under Section 256 of the

Code of Criminal Procedure at that stage or the defence would not examine

his witnesses. 

 

13.       Presence of the complainant or her lawyer would have been

necessary, as indicated hereinbefore, only for the purpose of cross-

examination of the witnesses examined on behalf of the defence.  If she did

not intend to do so, she would do so at her peril but it cannot be said that her

presence was absolutely necessary.  Furthermore, when the prosecution has

closed its case and the accused has been examined under Section 311 of the

Code of Criminal Procedure, the court was required to pass a judgment on

merit of the matter.

 

14.       We are not concerned herein as to whether the constituted attorney of

the complainant could represent the complainant. 

 

     Reliance in this behalf having placed on Jimmy Jahangir Madan v.

Bolly Cariyappa Hindley (Dead) By Lrs. [(2004) 12 SCC 509] need not,

thus, be considered by us.

 

15.       Similar contention of the complainant that the advocate is an agent of

his client and it is his duty to appear on behalf of his client, in our opinion, is

beyond the scope of this appeal.

 

16.       We, therefore, although do not approve the manner in which the

appeal has been disposed of by the High Court, are of the opinion that it is

not a fit case where we should exercise our jurisdiction under Article 136 of

the Constitution of India. 

 

17.       However, keeping in view of the fact that the complaint petition was

filed as far back on 10.01.2002, the learned Trial Judge should proceed with

the matter in accordance with law and dispose of the case as expeditiously as

possible.  On the date(s) on which the accused remains present, the

complainant would not take any adjournment and in the event she does not

choose to be represented in the court, the court shall proceed in the matter in

accordance with law.  Both the accused and complainant are directed to

appear in the Trial Court within two weeks from date.

 

17.       The appeal is dismissed with the aforementioned observations.