G. Karthik vs Consortium Finance Ltd Now Magma ...
2012 Latest Caselaw 2980 Del

 *         THE HIGH COURT OF DELHI AT NEW DELHI
 +                       CRL.M.C.2749/2011


                                                     Date of Decision: 04.05.2012
 G. KARTHIK                                               ...... Petitioner
                                   Through:        Mr. Anoop G. Chaudhari, Sr.
                                                   Adv. with Mr. P. Vinay Kumar
                                                   and Mr. A.P. Sinha, Advocates.

                        Versus

 CONSORTIUM FINANCE LTD NOW MAGMA LEASING LTD
                                         ..... Respondent
                  Through: Mr. Rajesh Mishra with Ms Malti,
                           Advocates.

 CORAM:
 HON'BLE MR. JUSTICE M.L. MEHTA

 M.L. MEHTA, J.

1. The petitioner assails the order of the learned MM dated 19.07.2011 dismissing his application under Section 256 CrPC, in complaint case bearing C.C No. 12040/2009 under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the "Act").

2. The brief facts necessitating the present petition are that between the period 06.10.1997 and 31.10.1997, the respondent/ complainant company had presented certain cheques issued by the petitioner, which were dishonored. The respondent/ complainant company, due to non-payment of the cheque amounts, preferred a complaint against the petitioner before the learned ACMM under Section 138 of the Act which was subsequently renumbered

and marked as CC No. 12040/09. In the process, the respondent/ complainant's evidence was recorded and also the petitioner's statement under Section 313 CrPC was recorded by the learned MM. Thereafter, between 23.08.2010 to 19.07.2011, for 6 consecutive hearings, none appeared for the respondent/ complainant before the learned MM. The petitioner preferred an application under Section 256 CrPC praying acquittal of the petitioner due to non-appearance of the complainant/ respondent, which was dismissed by the learned MM vide the impugned order dated 19.07.2011, citing that case is at the stage of defense evidence and is reaching finality. The present petition is filed by the petitioner assailing the said order.

3. The learned counsel for the petitioner contended that the complainant/ respondent has not appeared personally or through his pleader before the learned MM, consecutively on six occasions between 23.08.2010 and 19.07.2011, i.e. for almost one year. Drawing my attention to Section 256 CrPC, it is submitted that the petitioner ought to have been acquitted by the learned MM on the premise that the complainant is not interested to prosecute his complaint and that the repeated adjournments have caused undue harassment to the petitioner. Relying upon S. Rama Krishna v. S. Rami Reddy & Ors, (2008) 5 SCC 535, it is submitted that the mandate of law provides the accused is to be acquitted, if the complainant fails to be present at the hearing after the summons have been issued to the accused. It is further contended that the words used in Section 256 CrPC are, "the Magistrate Shall acquit the accused" on the failure of the complainant to appear and therefore, in view of mandate of Section 256 CrPC, the learned MM, ought to have acquitted the petitioner. It is further submitted, the

complainant never obtained exemption for his personal appearance from the Court, and thus his presence could not be dispensed with at the trial.

4. I have heard the learned counsel for the petitioner and Respondent and perused the records.

5. Section 256 of the Criminal Procedure Code reads as hereunder:-

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.

6. The legislature has incorporated Section 256 in the Criminal Procedure Code, with the purpose, that the criminal law machinery shall not be misused and abused by the complainant. In a dispute between two private parties, the participation of the complainant in pursuing the prosecution is of utmost importance for the efficient and speedy disposal of the case. In a summons case, it is the prerogative of the complainant to pursue the prosecution to attain speedy disposal of the case. Section 256 CrPC has been incorporated keeping in mind the interest of both the complainant and the accused. To prevent any prejudice to the complainant, Section 256 CrPC empowers the Magistrate to adjourn the hearing, for ensuring the presence of

the complainant, if sufficient cause is shown with regard to his inability to appear at the appointed date of appearance. However, failure of the complainant to appear, without sufficient cause, empowers a Magistrate to dismiss the complaint and to acquit the accused.

7. Section 256 CrPC, further in the proviso states that the presence of the complainant may be dispensed with if he is represented by his pleader or if his personal attendance is not necessary. The objective of the said provision is to prevent any undue delay to the trial or prejudice to the rights of the accused person facing trial.

8. In the present case not only that the complainant has already led his evidence in 2007, but the statement of the petitioner under Section 313 CrPC has also been duly recorded on 4.3.2008. Since then the case is being adjourned for defence evidence of the petitioner and now was fixed for its evidence as last opportunity. It is a matter of fact that, the complainant has failed to appear before the learned Magistrate on six occasions, but his absence has not prejudiced the petitioner. On the other hand, it is noticed that on five out of six occasions the case was adjourned at the instance of the petitioner on one or the other ground. Also, no delay in the trial, can be attributed to the respondent/ complainant as he has already led his evidence.

9. At the stage of defense evidence, the petitioner shall examine his defense witnesses, without any prejudice. Presence of the respondent/ complainant or his lawyer would have been necessary, only for the purpose of cross- examination of the witnesses examined on behalf of the defense. If he did not intend to do so, he would do so at his own peril, but it cannot be said that his presence was absolutely necessary.

10. In the case of S. Anand v. Vasumathi Chandrasekar, AIR 2008 SC 1296,

the Hon'ble Supreme Court held that:-

"10. Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of complainant have already been examined.

11. The date was fixed for examining the defence witnesses. Appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross- examine the witnesses examined on behalf of the defence.

13. Presence of the complainant or her lawyer would have been necessary, as indicated hereinbefore, only for the purpose of cross- examination of the witnesses examined on behalf of the defence. If she did not intend to do so, she would do so at her peril but it cannot be said that her presence was absolutely necessary. Furthermore, when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the court was required to pass a judgment on merit of the matter.

16. However, keeping in view of the fact that the complaint petition was filed as far back on 10.01.2002, the learned Trial Judge should proceed with the matter in accordance with law and dispose of the case as expeditiously as possible. On the date(s) on which the accused remains present, the complainant would not take any adjournment and in the event she does not choose to be represented in the court, the court shall proceed in the matter in accordance with law. Both the accused and complainant are directed to appear in the Trial Court within two weeks from date."

11.The judgment, S. Rama Krishna (Supra) relied upon by the petitioner is clearly distinguishable from the facts of the present case as the complaint in that case was at the initial stage of the trial, whereas in the present case, the trial has progressed to the stage of defense evidence.

12.In view of the fact that the trial is at its fag end, being fixed for the defence evidence as last opportunity, the absence of the respondent/ complainant shall not prejudice the petitioner or hamper the trial. I find no infirmity

with the order of the learned MM. The trial has to proceed as per law. The learned Magistrate shall proceed to record the defence evidence if any, after issuing Court notice to the complainant through counsel.

13.The petition is dismissed.

M.L. MEHTA, J.

MAY 04, 2012 awanish