Bombay High Court
Vijay Sanghavi vs The State Of Maharashtra And Anr on 9 March, 2016
Bench: A.M. Thipsay
3.ALPNo.322015(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
APPLICATION FOR LEAVE TO APPEAL (PVT) NO.32 OF 2015
Mr.Vijay Sanghavi
Having address at, Room No.19,
1st Floor, Sumeri Sadan,
Behind Tripathi Bhavan,
Aarey Road, Goregaon (W),
Mumbai 400 062. ... Applicant
V/s.
1. The State of Maharashtra
Through Public Prosecutor
2. Mr.Mahesh M.Udani
(Proprietor of M/s.R.A.International)
Having address at,
D/204, Ghatkopar Industrial Estate,
L.B.S.Marg, Ghatkopar (W),
Mumbai - 400 086. ... Respondents
.....
Ms.Kavita M.Pawar, Advocate for the Applicant.
Mrs.P.P.Bhosale, APP for the Respondent No.1./State.
Mr.Anand Talreja, Advocate for the Respondent No.2.
....
CORAM : ABHAY M. THIPSAY J.
DATED : 9th MARCH 2016.
ORAL JUDGEMENT :
1. Heard Ms.Kavita M. Pawar, the learned counsel for the
appellant. Heard Mr.Anand Talreja, the learned counsel for the
Respondent No.2.
Gaikwad RD 1/12
3.ALPNo.322015(J)
2. Leave granted.
3. The application for leave to appeal is treated as a
memo of appeal. It be numbered accordingly. Necessary
amendments be carried out forthwith.
4. The Appeal is admitted and heard finally by consent.
By consent, calling for Record and Proceedings dispensed with, the
counsel for the parties agreeing that the same is not necessary.
5.
The appellant is the original complainant. He had filed
a complaint against the respondent No.2 herein alleging
commission of an offence punishable under Section 138 of the
Negotiable Instruments Act. On 31/01/2014, the Metropolitan
Magistrate 28th Court, Esplanade, before whom the said complaint
case was pending, passed an order of acquittal as contemplated
under Section 256 of the Code of Criminal Procedure (For short,
"the Code"). Being aggrieved thereby, the appellant has
approached this Court, by filing the present Application, seeking
special leave to appeal from the said acquittal.
6. The impugned Order reads thus :
"Complainant absent when called out. No
steps taken since long. Hence case dismissed for
want of complainant u/sec.256 of the Cr.P.C.
Gaikwad RD 2/12
3.ALPNo.322015(J)
Accused is hereby acquitted for the offence
punishable u/sec.138 of the Negotiable Instruments
Act, 1881."
7. For the sake of convenience and clarity, the
applicant/appellant shall, hereinafter, be referred to as "the
complainant" and the respondent No.2 as "the accused".
8. The learned counsel for the complainant contended
that the impugned order is not just and proper. She submitted
that the accused himself was not present before the Court and
that, a warrant had been issued to procure his presence. She
submitted that the warrant had been duly collected by the
complainant and had been handed over to the police for execution
on 12/08/2013 itself. She also submitted that complainant had
lost the track of the matter for various reasons, and that, therefore,
the complainant could not remain present before the Court on the
given date. She submitted that the impugned order, having been
passed by observing, inter alia that 'no steps taken since long', is
bad and needs to be interfered with.
9. The learned counsel for the accused contended that the
impugned order is proper and legal. He submitted that the
complainant had throughout been negligent in the matter. It is
pointed out that previously also the accused had been acquitted
under Section 256 of the Code and that, it is only after the said
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3.ALPNo.322015(J)
order of acquittal was set aside by this Court on an appeal filed
therefrom, that the matter was restored and was pending before
the Magistrate. It is submitted that the complainant had been
remaining absent before the Magistrate since quite some time
before 31/01/2014 - the date on which the order of acquittal was
passed - and that, the averments made in the Application for
special leave/Appeal Memo themselves indicated that there was
no valid reason for the complainant's absence and his failure 'to
take steps'. It is submitted that since the impugned order is proper
and legal, no interference therewith is warranted.
10. I have carefully considered the matter. With the
assistance of the learned counsel for the parties, I have gone
through the Application and the annextures thereto, which include
the copies of roznama of the case.
11. It is clear that the accused was even earlier acquitted
by the Magistrate by an order dated 07/09/2009 on the ground of
absence of the complainant and his advocate before the Court on
that date. The said order of acquittal was set aside by this Court
by an order dated 21/04/2011, and pursuant thereto, the
proceedings before the Magistrate were revived. The parties were
directed to remain present before the Magistrate on 15/06/2011.
12. I find that on 15/06/2011, the complainant and the
accused were present before the Court, but the Court was vacant.
Gaikwad RD 4/12
3.ALPNo.322015(J)
The roznama shows that the Court continued to be vacant till
05/10/2012 and the matter was repeatedly being adjourned on
the ground that the Court was vacant. On 05/10/2012, the matter
was adjourned to 01/11/2012, by noting in the Roznama that the
Court was vacant.
13. In the meantime, by an order dated 13/08/2012,
passed by the Chief Metropolitan Magistrate, the case was
transferred to the Metropolitan Magistrate, 28 th Court, Esplande.
The matter actually appeared before the transferee Court on
01/11/2012. On that date, neither the complainant nor the
accused was present before the Magistrate, and as such, the
Magistrate directed notices to be issued to both the parties making
the same returnable on 15/12/2012. Evidently, the case was
transferred on a general order passed by the Chief Metropolitan
Magistrate and there was no notice of the transfer to either of the
parties.
14. The roznama dated 15/12/2012 shows that on that
date, though the complainant was absent, his advocate was
present before the Magistrate. The accused was absent. The
Magistrate ordered a warrant of arrest to be issued against the
accused and adjourned the case to 02/03/2013.
Gaikwad RD 5/12
3.ALPNo.322015(J)
15. On 02/03/2013, the complainant was absent, but his
Advocate was present before the Magistrate. The accused was
absent. The Magistrate adjourned the matter to 02/05/2013 'for
steps'.
16. On 02/05/2013 the board was discharged and the
matter was adjourned to 15/06/2013. On 15/06/2013 again the
board was discharged and the matter was adjourned to
26/07/2013.
17.
On 26/07/2013, the complainant was absent, but his
advocate was present. The warrant issued against the accused was
not executed. The Magistrate adjourned the matter to 30/08/2013
for "steps/dismissal".
18. On 30/08/2013, both the parties were absent and the
matter was adjourned to 16/11/2013 'for steps/dismissal'.
19. Apparently, the matter did not appear on board on
16/11/2013 and it was taken on board on 10/01/2014. Both the
parties were absent on that date. Observing that the parties were
absent "since long", the Magistrate adjourned the matter to
31/01/2014 'for dismissal'.
20. It is on this date that the impugned order came to be
passed, as the complainant as well as accused were absent.
Gaikwad RD 6/12
3.ALPNo.322015(J)
21. It is clear that a warrant of arrest had been issued for
securing the presence of the accused. This warrant had been
handed over by the complainant to the police on 12/08/2013
itself. This is not in dispute and has not been disputed before this
Court.
22. Since the Magistrate has emphasized on "no steps
having been taken by the complainant" as a ground justifying the
exercise of the discretion vested in him by Section 256, in favour
of the accused and ordering his acquittal, some observations in
that regard would be necessary.
23. The Magistrate had been vague in that regard and
preferred not to disclose what were the precise 'steps' which the
complainant was required or expected to take. The 'steps' would
obviously be such as would be necessary for proceeding further
with the trial; and in the circumstances, the biggest obstacle in
proceeding with the trial was the non-availability of the accused
before the Magistrate. The question as to 'what was the
complainant expected to do to compel the accused to appear
before the Court' arose in the course of arguments, when the
learned counsel for the accused vehemently contended that it was
for the complainant to secure the presence of the accused. When
it was pointed out that the complainant would not be expected to
physically apprehend the accused and produce him before the
Gaikwad RD 7/12
3.ALPNo.322015(J)
Magistrate, the learned counsel submitted that 'it was the duty of
the complainant to see that the warrant was executed and 'the
steps' referred to by the Magistrate, were 'steps to ensure that'.
That an accused who, in law, is required to be present before the
Magistrate in obedience to the process issued by the Magistrate
should fail to do so and instead contend that 'the complainant did
not take steps to get him arrested and produced before the
Magistrate' is indeed paradoxical, but, this may be left at that.
24. When the Magistrate had issued a warrant of arrest for
compelling the presence of the accused, the 'steps' that the
complainant is expected to take, if at all, can only be for ensuring
that the warrant is received by the police. It would be the duty of
the police, thereafter, to have the same executed. It would the
duty of the Magistrate to see that it is executed. In case of non-
execution of the warrant, the Magistrate would not only be
entitled to and fully justified, but rather bound to make an inquiry
with the police as to 'what had happened in the matter of
it has not been executed.' In the
execution of warrant and why
instant case, nothing was done by the Magistrate.
25. When the question of propriety of focusing on the
absence of the complainant - when the accused had not been
remaining present before the Magistrate, and when, in spite of the
coercive steps taken by the Magistrate the presence of accused was
Gaikwad RD 8/12
3.ALPNo.322015(J)
not being procured - arose in the course of arguments, the learned
counsel for the accused contended that the provisions of Section
256 of the Code speak only of the absence of the complainant and
that they do not refer to the presence or absence of accused. What
he canvassed by making this submission is that the aspect of the
presence or absence of accused, would be quite immaterial in
deciding whether an order of acquittal under Section 256 of the
Code should be passed.
26. It is not possible to agree with the learned counsel for
the accused.
27. Section 256 gives a discretion to the Magistrate and an
order of acquittal cannot be mechanically passed on the absence of
the complainant. The Magistrate is expected to exercise the
discretionary power conferred on him judicially and judiciously.
28. The provisions under Section 256 of the Code are
meant to ensure that the complainant does not drag on the
proceedings without taking any real interest in prosecuting the
matter. The provisions of Section 256 of the Code come in picture
after a summons has been issued and after a trial is expected to
commence. The absence of the complainant would result in the
Court being unable to proceed with the trial and that is why to
prevent the harassment of the accused, who would be required to
Gaikwad RD 9/12
3.ALPNo.322015(J)
be present before the Magistrate without there being any prospects
of the case proceeding further, that the said Section has been ,
apparently, enacted. When in a given case the accused is served
with a summons, but does not remain present before the Court
and a warrant is issued, but still not executed, it would not be just
and proper to focus on the absence of the complainant and order
the acquittal of the accused, who has defied the process of the
Court. When the process to compel the appearance of the accused
was undertaken by the Magistrate and was incomplete, the
Magistrate ought to have been more concerned with the non-
execution of the warrant of arrest by the police and ought to have
questioned the police in that regard instead of getting rid of the
case by focusing on the absence of the complainant.
29. Even otherwise, the proceedings before the Magistrate
were affected by the Court being vacant for a period of more than
one year. A number of dates were given, but on all these dates the
matter was adjourned to some further dates, because the Court
was vacant. When the matter was revived after the previous order
of acquittal passed by the Magistrate was set aside, the parties
were directed to remain present before the Court on 15/06/2011,
but on that date itself, the Court was vacant.
Gaikwad RD 10/12
3.ALPNo.322015(J)
30. Then there came an order of transfer of the case from
one Court to another apparently without notices to the parties
and, therefore, the transferee Court directed notices to be issued
to both the parties. The roznama does not show that the notices
were duly served upon any of the parties. The board was also
discharged on at least two occasions.
31. When the proceedings were progressing in this
manner, suddenly to treat the absence of the complainant harshly
and pass an order of acquittal was not proper. The discretion
available to the Magistrate was not exercised properly by him in
the instant case. This was a case where the fact, that the accused
had not remained present before the Court even on a single date
after the case was revived, ought to have been taken into
consideration by the Magistrate. The emphasis on 'not taking
steps' was totally misplaced as the warrant had already been
delivered to the police. Though an order to issue the warrant was
passed earlier, it appears from the record that it was signed by the
Magistrate only on 07/08/2013. The complainant, therefore,
cannot be faulted for not handing over the warrant to the police
before that date. All these aspects were entirely overlooked by the
Magistrate.
32 The impugned order is not proper. It needs to be
interfered with.
Gaikwad RD 11/12
3.ALPNo.322015(J)
33. The appeal is allowed.
34. The impugned order is set aside.
35. The Magistrate shall proceed further with the trial
expeditiously and in accordance with law.
36. The parties shall appear before the Magistrate on 29 th
April 2016.
(ABHAY M. THIPSAY J.)
Gaikwad RD 12/12
