Mahendra Indermal Borana vs Anil Shankar Joshi And Anr.
2003 Latest Caselaw 1045 Bom

JUDGMENT

V.K. Tahilramani, J.

1. Heard the learned Advocate for the applicant and the learned A.P.P. for the State. Rule. By consent rule is made returnable worthwith.

2. The respondent No. 1 (original complainant) had filed a complaint against the present applicant under Section 138 of Negotiable Instruments Act. The said complaint was filed in the Court of J.M.F.C, Court No. 4, Pune and the said complaint was numbered as 1482/2000.

3. On 13.1.2003 as the complainant remained absent, due to absence of the complainant, the learned J.M.F.C, Court No. 4, Pune dismissed the complaint under Section 256 of Cri.P.C. and acquitted the accused (applicant). Being aggrieved by the dismissal of the complaint, the complainant preferred Criminal Revision Application No. 151/2003 before the Additional Sessions Judge, Pune. By order dated 29.5.2003, the learned Additional Sessions Judge, Pune allowed the revision application and restored the complaint back to the file of the learned J.M.F.C. Being aggrieved by the said order of the learned Sessions Judge, the applicant i. e. the original accused has preferred the present criminal application. I have perused the order of the learned Additional Sessions Judge, and find no infirmity therein so as to warrant interference.

4. In the present case the Magistrate had issued process against the accused under Section 138 of Negotiable Instruments Act. The applicant (accused) had appeared in response to the summons. Thereafter the matter was posted for recording of plea of the accused. On the date of recording of plea of the accused, the complainant was absent and hence the learned Magistrate dismissed the complaint. On behalf of the applicant, it is submitted that the complainant must remain present on each and every date of hearing and if the complainant cannot remain present, then he is expected to file exemption application before the Court. However, in the present case, no such exemption application was moved before the learned Magistrate and, therefore, it is submitted that the learned Magistrate was justified in dismissing the complaint.

5. In order to appreciate the controversy involved in this matter, it is necessary to . reproduce the provisions of Section 256 of Cri.P.C, which is 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 complai-nant 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. 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.

6. On perusal of the order passed by the learned Magistrate, I find that the learned Magistrate has nowhere stated in the order as to why the personal attendance of the complainant was necessary when on the said date the case was admittedly posted for recording the plea of the accused. The order only states that the complainant is not interested in prosecuting the complaint. Such an order cannot be said to be a well-reasoned order.

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 not 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 short cut for disposal of the case. Under Section 256, Crl.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.

9. The learned Advocate for the applicant has contended that once a complaint has been dismissed by the Magistrate, the said complaint cannot be restored. In support of this (233) contention he placed reliante on the decision of the Apex Court in the case of Major General A.S. Gauraya and Anr. v. S.N. Thakur and Anr., 1986 Cri.L.J. 1074. On perusal of the said decision, it is noticed that the Apex Court has observed therein that the Magistrate has no inherent power to review his order of dismissal and to restore the case. It is further observed that, so far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction to restore the case. However, in the present case it is not the Magistrate who has restored the complaint, it is the Sessions Court which has restored the complaint. Therefore, clearly this decision would have no application to the facts of the present case.

10. The learned Advocate for the applicant has then raised the contention that no revision application could have been preferred by the complainant before the Sessions Court. He has submitted that as the complaint was dismissed it amounted to an acquittal and hence the complainant ought to have filed proceeding before the High Court. Thus it was contended that the revision application preferred before the Sessions Court was not maintainable and the learned Sessions Judge erred in allowing the revision application preferred by the complainant. In my view, such revision application was maintainable in view of the observations in the very judgment, on which reliance has been placed by the applicant i. e. Major General A.S. Gauraya (supra). In the said judgment as observed above, the Magistrate had dismissed the complaint and thereafter, the Magistrate had restored the complaint. The Apex Court had made observations, which are stated in paragraph No. 9 above. However, thereafter in paragraph No. 11 of the very same judgment the Apex Court has observed that:

"In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision." Thus, from the above observations, it is clear that the revision preferred by the complainant against the order of dismissal of complaint was very much maintainable. Thus, the learned Sessions Judge was right in entertaining the revision application preferred by the complainant against dismissal of his complaint by the Magistrate.

11. In a case like this, when the presence of the complainant is not necessary and if the facts and circumstances of the case so require to prevent the failure of justice, a complaint can be restored by the High Court or even the Court of Sessions. In the case of Associated Cement Company Ltd. v. Keshavanand, I (1998) CCR 82 (SC)=II (1998) SLT 26=1998 Cri.L.J. 856 (SC), the Apex Court has observed that:

"Reading the section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the section (Section 256 of Crl.P.C). 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 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 the 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."

12. In the present case, on the said date the matter was kept only for recording the plea of the accused, in such case, the presence of the complainant was not at all required hence the learned Magistrate ought not to have dismissed the complaint.

13. Thus, as noted earlier, the complaint has been rightly restored by the learned Additional Sessions Judge. No interference is called for with the order of the learned Sessions Judge.

14. The learned Magistrate is directed to proceed with the trial of the case after issuance of formal notices to both the parties of the next date, to be fixed in the case. Application is disposed of in the above terms.