M/S One Textile vs Umesh Bharech
2022 Latest Caselaw 3015 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                            C.R.A 200 of 2019

                            M/s One Textile
                                   Vs.
                             Umesh Bharech

      For the appellant:             Mr. Samrat Choudhury, Adv.

      For the Respondent:            Mr. Tarique Quasimuddin, Adv.,

Ms. Sanchita Chaudhuri, Adv.

Heard on: 08 April, 2022.

Judgment on: . 20 May, 2022.

BIBEK CHAUDHURI, J. : -

1. The appellant, a proprietorship firm filed a complaint under Section

138 of the Negotiable Instrument Act. The said complaint was registered

as Case No.C-79 of 2010 in the court of learned Chief Metropolitian

Magistrate, Calcutta. The case was subsequently transferred to the 3rd

Court of the Metropolitan Magistrate, Kolkata for trial and disposal. It

appears from the lower court record that on 20th July, 2017, the accused

was examined under Section 251 of the Code of Criminal Procedure.

Substance of acquisition under Section 138 of the Negotiable Instrument

Act was stated and explained to him. He pleaded not guilty. Accordingly

the case was fixed for trial. Next date for recording evidence was fixed on

30th October, 2017. On that date the complainant was present; the

accused was represented under Section 205 of the Code of Criminal

Procedure by his learned Advocate; however, trial of the case did not

commence and the learned Magistrate suo moto adjourned the hearing of

the case fixing 13th March, 2018 for evidence. On 13th March, 2018 the

complainant was absent without any step. Therefore, the learned

Magistrate directed him to file show cause as to why the case shall not be

dismissed for non-prosecution fixing 10th April, 2018 for filing show cause

by the complainant. On 10th April, 2018 the complainant was again

absent without any step. Therefore, the learned Metropolitan Magistrate,

3rd Court, Kolkata acquitted the accused under Section 256 of the Code of

Criminal Procedure. The instant appeal is filed by the complainant of the

aforesaid case assailing the order of acquittal passed in favour of the

respondent by the court below on 10th April, 2018.

2. Learned Advocate for the appellant submits at the outset that in a

summons case, the court can pass an order of acquittal under Section

256 of the Code due to non appearance of the complainant. However, the

said order is not automatic. An order under Section 256 of the Code

cannot be passed on mere absence of the complainant. The learned

Magistrate is under obligation to exercise such power judicially and fairly

without impairing the cause of administration of criminal justice. Such

power cannot be invoked, unless the court finds for some good reasons, it

would not be proper to adjourn the hearing of the case to some other

date. In other words, before taking recourse to the provision of Section

256 of the Code, the court has to come to a conclusion that there is no

justifiable reason to adjourn the hearing of the case. Therefore, even when

the complainant is absent the court before exercising its discretion under

Section 256 of the Code has to record that there is no good reason for

which it would be proper to adjourn the hearing of the case to some other

date. The learned Advocate for the appellant next takes me to the

impugned order. The relevant portion of the order runs thus:-

"On perusal of the case record, I find that since 13th

March, 2018 the complainant was absent without step. The

complainant was directed to file show-cause but no show-

cause has been filed till date.

Such conduct of the complainant only reveals a delaying

tendency on the part of the complainant.

The complainant, thus, evidently shows a lack of interest

on proceeding with the instant case.

It is seen that the provision of Section 256 Cr.P.C is

attracted to the facts and circumstances of this case.

In view of the above, the accused person(s) is/are

acquitted under Section 256 of the Code of Criminal Procedure.

The accused person(s) be discharged from his/her/their

respective bail bond(s) and be set at liberty at once.

Recall process, if any.

Note in T.R."

3. According to the learned Advocate for the appellant the learned

Magistrate did not exercise his judicial discretion and mechanically

passed the order. It is true that on 13th March, 2018 and 10th April, 2018,

the complainant was absent but he failed to consider that the

complainant was present to adduce evidence on 27th November, 2013,

19th November, 2014, 3rd June, 2014, 1st August, 2014, 1st December,

2014, 19th November, 2015, 22nd September, 2015, 22nd December, 2015,

20th April, 2017 and 30th October, 2017. The record shows that the

complainant was diligent in proceeding with the case, but his evidence

was not recorded due to one reason or the other. According to the learned

Advocate for the appellant, before acquitting the accused under Section

256(1) of the Cr.P.C, the learned Magistrate did not even consider the

previous conduct of the appellant. Therefore, the learned Magistrate was

wrong in acquitting the accused under Section 256 of the Code of

Criminal Procedure. In support of his contention he refers to a decision of

this court in Bijay Kumar Bhattar vs. Trimurti Assoicates Pvt. Ltd &

Anr. reported in 2010(1) CHN (Cal) 108. On the selfsame point he also

refers to anther decision of this court in Shri G. Sekhar vs Smt. K.

Prasanna Jyoti Rao and Another reported in (2017) 3 Cri.LR (Cal) 524.

4. Referring to the decision of the Hon'ble Supreme Court in the case

of The Associated cement Company Ltd. vs. Keshavanand reported in

1998 (1) SCC 687, it is submitted by the learned Advocate for the

appellant that before applying to the provision of Section 256 of the Code

of Criminal Procedure, the Magistrate ought to decide if the appearance of

the complainant is necessary on the date when the accused is acquitted

under Section 256 of the Code of Criminal Procedure. When the court

notices that the complainant is absent on a particular date, 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.

5. In S. Rama Krishna vs. S. Rami Reddy (D) By His Lrs. & Ors

reported in 2008(5) SCC 535, the Hon'ble Supreme Court lays down the

following grounds when an order of acquittal may be recorded in favour of

the accused. The ground are:-

            (i)     That   summons    must     have   been   issued   on   the

                    complainant.

            (ii)    The Magistrate should be of the opinion that for some

reasons, it is not proper to adjourn the hearing of the

case to some other date.

(iii) The date on which the order under Section 256(1) can

be passed is the day appointed for appearance for the

accused or any day subsequent thereto, to which the

hearing of the case has been adjourned.

6. Learned Advocate for the respondent, on the other hand, submits

that the trial court examined the accused under Section 251 of the Code

of Criminal Procedure on 20th July, 20187. On that date the complainant

was absent without any step. He was directed to submit show cause as to

why the case shall not be dismissed for non-prosecution by 10th April,

2018. When the complainant was absent on 10th April, 2018 and did not

take any step, the learned Magistrate had no option but to record the

order of acquittal under Section 256(1) of the Code of Criminal Procedure

in favour of the respondent. The impugned order does not suffer from any

illegality or apparent error on the face of the record. Therefore, this Court

should not interfere with the order dated 10th April, 2018. It is contended

by the learned Advocate for the respondent that while sitting in judgment

over an acquittal, the appellate court is first required to seek an answer to

the question whether the findings of the trial court are palpably wrong,

manifestly erroneous or entirely unsustainable. If the appellate court

answers the above question in the negative, the order of acquittal is not to

be disturbed only on the ground that an alternative view might have been

taken by the trial court on the basis of the evidence or materials on

record. If there is no perversity in the findings by the learned Magistrate

and the findings of the trial court do not suffer from any illegality, the

appellate court should not interfere with the order passed by the trial

court. In support of his contention the learned Advocate for the

respondent refers to a decision of the Hon'ble Supreme Court in Ramesh

Babulal Doshi vs. State of Gujarat reported in (1996) 9 SCC 225. He

also refers to another decision of the High Court of Allahabad in the case

of Saurabh Kumar Gupta vs. State of U.P & Anr. reported in (2017)

SCC OnLine ALL 1236.

7. Having heard the learned Counsels for the parties and on careful

perusal of the reported decisions cited by the learned Counsels for the

appellant and the respondents, it is ascertained that acquittal of the

accused on the absence of the complainant under Section 256(1) of the

Code of Criminal Procedure is not automatic. The court must apply its

judicial discretion to the facts and circumstances of the case where it is

expedient for the court to acquit the accused under Section 256(1) of the

Code. Having gone through the impugned order, I am of the view that the

approach of the learned court was clearly erroneous and not in

accordance with law. On the date of passing of the impugned order the

accused was represented under Section 205 of the Code and he was

physically absent. The learned Magistrate passed the order of dismissal of

the case without forming any opinion that there is no good reason to

adjourn the hearing of the case to some other date. The learned

Magistrate has also not recorded any finding justifying dismissal of the

case. The case was dismissed because the complainant failed to submit

any application showing cause of his absence on the previous date.

Absence of judicial discretion is apparent on the face of record. Because

the learned Magistrate did not assign any reason in support of the

requirement that it is not proper to adjourn the hearing of the case to

some other date.

8. In view of the above discussion, this Court is of the considered

opinion that the impugned order dated 10th April, 2018 is liable to be set

aside.

9. Accordingly, the instant appeal is allowed on contest, however

without cost.

10. The order dated 10th April, 2018 passed by the learned Metropolitan

Magistrate, 3rd Court, Kolkata in C-79 of 2010 is set aside.

11. The learned Magistrate is directed to dispose of the case in

accordance with law expeditiously.

12. Let a copy of this judgment be sent to the court below along with

the lower court record.

(Bibek Chaudhuri, J.)