Sri Jayshankar Chaubey vs The State Of West Bengal & Anr
2022 Latest Caselaw 1582 Cal

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Appellate Jurisdiction
                              Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                          CRA 667 of 2018

                    Sri Jayshankar Chaubey
                             -Vs.-
                The State of West Bengal & Anr.

For the appellant         :   Mr. Shashanka Sekhar Saha, Adv.,

For the State             :   Mr. Pratick Bose, Adv.

For the Opposite          :   Mr. Navanil De, Adv.,
No. 2                         Mr. Subhrajit Dey, Adv.

Heard & Judgment on:          29.03.2022.

Bibek Chaudhuri, J.

Vokalatnama filed by Mr. De on behalf of the Private

Respondent be taken on record.

A Short question is involved in the instant appeal. The accused

was acquitted by the Trial Court under Section 256 of the Code of

Criminal Procedure by an order dated 1 st September, 2018. The said

order of acquittal is assailed by the complainant in the instant appeal.

I have heard Mr. Saha and Mr. De appearing on behalf of the

appellant and the respondent no. 2 respectively. Section 256 of the

Code of Criminal Procedure states the circumstances for non-

appearance or death of the complainant. The said provisions runs

thus: -

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".

It appears from the certified copy of the order sheet of

Complaint Case No. 175/2018 that the Learned Chief Judicial

Magistrate, South 24-Parganas at Alipore took cognizance of offence

under Section 138 of the Negotiable Instrument Act vide order dated

19th January, 2018. Subsequently vide order dated 6th March, 2018

on the basis of the statement of the complainant on solemn

affirmation process was issued against the accused persons under

Section 138 of the Negotiable Instrument Act. The accused appeared

before the Court below on 16th May, 2018 and filed an application

under Section 205 of the Code of Criminal Procedure. The said

application was allowed and the next date for examination of the

accused under Section 251 of the Code of Criminal Procedure was

fixed on 31st May, 2018. On 31st May, 2018 there was no judicial

proceeding in the Trial Court due to a resolution taken by the local

Bar. Next date for examination of the accused under Section 251 of

the Code of Criminal Procedure was fixed on 4th July, 2018. On 4th

July, 2018 the accused appeared but the complainant was absent

without any step. Therefore, the complainant was directed to show

cause as to why the complaint under Section 138 of the Negotiable

Instruments Act shall not be dismissed fixing 1 st April, 2018 for

showing cause by the complainant. Finally, on 1 st September, 2018

the Court dismissed the petition of complaint under Section 256 of the

Code of Criminal Procedure for absence of the complainant without

any step and the accused was acquitted from the case. The said

order of acquittal was assailed in the instant appeal.

On perusal of the entire order sheet it is found that the conduct

of the complainant in the Trial Court was really unfortunate.

However, it is also found at the same time that the trial Court even

after fixing date for examination of the accused under Section 251 of

the Code of Criminal Procedure did not examine him due to absence

of the complainant. It is needless to say that examination of the

accused under Section 251 of the Code of Criminal Procedure is a

mandatory provision between Court and the accused when the

accused appears in pursuance to summons. Presence of the

complainant on the date of examination of the accused under Section

251 of the Code of Criminal Procedure is not necessary. The learned

Trial Judge however, failed to comply with the mandatory provision of

Section 251 of the Code of Criminal Procedure on the ground that on

the date of examination of the accused, the complainant was absent.

It is needless to say that Section 256 of the Code of Criminal

Procedure is a deterrent provision where the Court can pass an order

of acquittal in the absence of the complainant. However, In

Associated Cement Co. Ltd. Vs. Keshvanand reported in 1998

(1) SCC 687, the Hon'ble Supreme Court observed that Section 256

affords some deterrence against dilatory techniques on the part of the

complainant but does not mean that if the complainant is absent the

Court has a duty to acquit the accused. In other words, Section 256

is not a mandatory provision. The Court can either acquit the accused

or defer the case for trial.

In the instant case, it is clear that though the date was fixed for

recording plea of the accused under Section 251 of the Code of

Criminal Procedure, the learned Magistrate did not record the plea on

the date fixed. I am not unmindful to note that the conduct of the

accused during trial of the case is not satisfactory. However, only for

non-appearance of the complainant for two days, the case of the

complainant for non-payment of debt and liability should not be

thrown away adopting the provision laid down in Section 256 of the

Code of Criminal Procedure.

For the reasons stated above, the impugned order dated 1 st

September, 2018 is set aside subject to payment of cost of

Rs.10,000/- to be paid by the appellant in the Trial Court to the

account of the District Legal Services Authority.

The appellant is directed to appear before the Trial Court within

a fortnight from the date of passing of the order. The appellant is

further directed to attend the Court proceedings on each and every

date of trial.

The instant appeal is, accordingly, allowed with the above

order and direction.

A copy of this order be sent to the Court below forthwith along

with the lower court record.

Parties are at liberty to act on the server copy of this order.

Urgent photostat certified copy of this order may be supplied to

the parties expeditiously, if applied for.

[Bibek Chaudhuri, J.]

Srimanta/Mithun A. Rs. (Court)