JUDGMENT J.H. Bhatia, J.
1. Heard Mr. Chatterji, the learned Counsel for the appellant and Mr. Piratwar, learned Counsel holding for Mr. Suryawanshi, Advocate for the respondent.
2. As per the order dated 28.4.2006 in Criminal Application No. 2713 of 2005 this Court has already granted leave to the appellant to prefer appeal against the order of acquittal. Perused the record. Admit. In view of the nature of the matter, by consent, it is taken up for final hearing forthwith.
3. To state in brief the appellant is the original complainant and respondent is the original accused. The appellant had filed complaint under Section 138 of Negotiable Instruments Act against the respondent alleging that he is the proprietor of Ashok Oil Industries in Old M.I.D.C. Area at Jalna. The appellant and the respondent were well acquainted to each other. The respondent was in need of Rs. 1,00,000/-. The appellant gave hand loan to him of Rs. 1,00,000/- by cheque dated 15.9.2000. The cheque was encashed by the respondent and he received the amount. The respondent promised to repay the amount within four months and he gave postdated cheque to the appellant for repayment of the said amount. Before maturity of the cheque, the respondent requested the appellant for further period of four months. Therefore, earlier cheque was taken back by the respondent and he issued fresh cheque dated 15.5.2001 against Jalna People's Co-operative Bank, Jalna. The cheque was presented for enchashment to the said Bank through the Banker of the appellant. On 17.5.2001, however, the cheque was returned dishonoured with endorsement funds are insufficient. In spite of service of notice, the respondent did not make the payment and, therefore, the appellant filed the complaint under Section 138 of N.I. Act and it came to be registered as Summary Trial Case No. 1724 of 2001 in the Court of C.J.M., Jalna, on 21.6.2001.
4. The learned C.J.M. issued process against the respondent on 30.6.2001. For long time the process could not be served. Warrant was also issued and finally the respondent appeared before the Court for the first time on 30.8.2005 and he was released on bail. On that day the respondent made an application Exh. 18 for production of certain documents. That application was allowed and the matter was adjourned to 1.9.2005 for recording plea of the accused-respondent. On 1.9.2005 the matter could not proceed as the Presiding Officer was on leave and. therefore, the matter was adjourned to 5.9.2005. On that day, when the matter was called, the accused was present but the complainant and his Advocate were absent. In the result, on the same day the learned Joint J.M.F.C, Jalna passed an order below Exh. 1 dismissing the complaint under Section 256, Cr.P.C. and acquitted the accused. Being aggrieved by the impugned order, the appellant has preferred the present appeal.
5. Mr. Chalterji, vehemently contended that the facts narrated above clearly indicate that the accused had appeared before the Court for the first time more than four years after filing of the complaint under Section 138 of N.I. Act. It took long period to serve process on him and to get his appearance before the Court. On 30.8.2005, after appearing before the Court for the first time, he moved an application Exh. 18 seeking direction to the complainant to produce certain documents. That application was allowed and the matter was fixed for recording plea of the accused on 1.9.2005. On that day, plea could not be recorded because the Presiding Officer of that Court was on leave. As such, on 5.9.2005 the matter came up before the learned J.M.F.C. for the first time for recording plea of the accused effectively. On that day, the complainant and his Counsel were absent while accused was present and complaint came to be dismissed. Mr. Chatterji vehemently contended that in the given circumstances, presence of the complainant before the Court was not absolutely essential for proceeding in the matter and taking into consideration the circumstances in which the matter had come before the Court, the Court could have granted adjournment or adjourned the matter for some time or could proceed to record the plea of the accused and then fix the matter for final hearing. It is evident that for recording of plea of the accused, presence of the complainant was not absolutely essential. Mr. Chatterji relied upon Mahendra Indermal Borana v. Anil Shankar Joshi and Anr. IV (2004) BC 437 : 2004 All MR (Cri) 1715, decided by the learned Single Judge of this Court in identical circumstances. In that case also the matter was fixed for recording the plea of the accused. On that day the complainant was absent and the case came to be dismissed. In that case the complaint was restored by the Additional Sessions Judge and that order was challenged before the High Court. The learned Single Judge after reproducing the provisions of Section 256, Cr.P.C. observed in para 5, as follows:
A brief perusal of the above section would indicate that the section is mandatory in nature and if the complainant does not appear on the date of hearing the Magistrate shall acquit the accused. However, the latter part of the section clearly indicates that the Magistrate has another option i.e. to adjourn the hearing of the case to some other date. The third option which is available to the Magistrate under this section is that the Magistrate may proceed with the case if in the opinion of the Magistrate, the personal appearance of the complainant is not necessary.
The learned Judge made further observations in para Nos. 7 and 8 as follows:
7. The reasons for absence of the complainant can be numerous. Sometimes the reasons may be beyond the control of the complainant. Even though the Magistrate is not bound by the provisions of the statute to do so, there is nothing wrong in adjourning the case to another date so that the Magistrate may satisfy himself that the absence of the complainant was note due to lack of diligence, or if the complainant's presence is not required on the particular day, the Magistrate may dispense with the attendance of the complainant and proceed with the case. In all such cases, the Magistrate is expected to take stock of the whole situation before he uses his discretion and decides the course to be followed. The Magistrate should not view the absence of the complainant, as a shortcut for disposal of the case. Under Section 256, Cr.P.C. dismissal of a complaint for non-appearance is one of the options given to the Magistrate, however, that is not the only option and there are other options which the Magistrate can exercise. He has the option to adjourn the hearing of the case to some other date. He has also the option to dispense with the attendance of the complainant and proceed with the complaint. When a statute vests various options with the Magistrate, it is necessary that the option which he adopts should be exercised judiciously and to advance the cause of justice.
8. Admittedly, on the said date the case was posted for recording the plea of the accused and, therefore, the learned Magistrate could very well have exercised the option to dispense with the attendance of the complainant and to proceed with the case and to record plea of the accused. When the matter was posted for recording the plea of the accused, there was no reason to dismiss the complaint due to absence of the complainant. There was no need to use a short-cut method of dismissing the complaint, when the matter was not posted for recording evidence of the complainant. For the purpose of recording the plea of the accused, it was not at all essential that the complainant should have remained present before the Court.
The High Court for the aforesaid reasons refused to interfere in the order passed by the learned Additional Sessions Judge. I respectfully agree with the observations made by the learned Single Judge in the said case. The present case is squarely covered by this authority.
6. In view of the law explained in Mahendra Indermal Borana and the facts of the present case, I find that dismissal of complaint on the very first day fixed for recording of plea of the accused, only because the complainant was absent on that day, amounts to miscarriage of justice. Therefore, it is necessary that the impugned order should be quashed and set aside in the interest of justice.
7. For the aforesaid reasons, appeal is allowed. Impugned order dismissing the complaint under Section 256, Cr.P.C. acquitting the accused-respondent is hereby set aside. S.T.C. No. 1724 of 2004 is hereby restored to the file of learned J.M.F.C, Jalna with direction that the matter be proceeded expeditiously and be disposed of as early as possible.