Amarjeet Singh vs State Of Uttarakhand
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Uttarakhand High Court

Amarjeet Singh vs State Of Uttarakhand on 9 April, 2024

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                Criminal Misc. Application No. 398 of 2024


Amarjeet Singh.                                               .......Applicant.

                                             Versus

State of Uttarakhand
and another.                                                 .......Respondents.
Present:
Mr. Jai Krishna Pandey, learned counsel for the applicant.
Mr. Saurabh Pandey, learned Brief Holder for the State.


Hon'ble Rakesh Thapliyal, J.

1. By the instant C482 application, applicant is challenging the order dated 31.01.2024 passed by learned Addl. Chief Judicial Magistrate, Haldwani, District Nainital in Complaint Case No. 1324 of 2017 (Amarjeet Singh Vs. Rajwant Singh) whereby the complaint of the applicant under Section 138 of the Negotiable Instruments Act, 1881 has been rejected and accused / respondent no. 2 has been acquitted.

2. Brief facts of the present case are that applicant had given Rs. 1,20,00,000/- (Rupees One Crore Twenty Lakh only) to respondent no. 2, who had promised him to return the same. Thereafter, respondent no. 2 had given three cheques pursuant to an agreement dated 04.10.20216 executed between the applicant and respondent no. 2. When applicant submitted cheques for the encashment in the Bank the same were dishonoured. Cheque bearing no. 710503 for an amount of Rs. 30,00,000/- was dishonoured on 06.03.2017. Subsequently, a complaint no. 1324 of 2017 was filed, in which cognizance was taken and summons were issued to respondent no. 2 but respondent no. 2 did not appear, consequently, bailable warrant followed by non bailable

warrant were issued and subsequently, proclamation under Section 82 Cr.P.C. was issued despite this he did not appear. Thereafter, on 20.11.2023, the trial court constituted a special police team for execution of non bailable warrant and steps were taken by the applicant but on 31.01.2024 the complaint has been rejected on the ground that applicant was not present on the date of hearing and it appears that he is not pursuing the matter.

3. As it appears from the order under challenge the Addl. Chief Judicial Magistrate rejected the complaint by invoking Section 256 Cr.P.C. Now, Section 256 Cr.P.C is being reproduced 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 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."

4. Learned counsel for the applicant submits that there was no occasion for the Magistrate to reject the complaint of the

applicant by invoking Section 256 Cr.P.C. since on the complaint, cognizance was taken, summons were issued, and when respondent no. 2 did not appear, bailable warrants followed by non bailable warrants were issued and not only this even proclamation under Section 82 Cr.P.C. was issued and thereafter, the court itself has constituted a Special Police team for execution of non bailable warrant and despite this respondent no. 2 did not appear, therefore, the Magistrate has wrongly rejected the complaint particularly when respondent no. 2 did not appear despite bailable warrant followed by non bailable warrant and proclamation under Section 82 Cr.P.C.

5. Learned counsel for the applicant has placed reliance on the judgment rendered by the Kerala High Court in the case of Joy Abraham Vs. Jiju Thomas 2006 SCC online Ker 232 wherein it is observed that Section 256 (1) Cr.P.C. does not apply to a case in which warrant is issued. The Magistrate shall not, under Section 256 (1) Cr.P.C., acquit an accused whose production in Court is sought for under an arrest warrant. In short, an accused against whom warrant is issued shall not be acquitted under S. 256(1) of the Code of Criminal Procedure. The benefit of acquittal under Section 256 (1) Cr.P.C. shall not be extended to an accused who fails to appear in court, in obedience to the summons issued by the court.

6. Learned counsel for the applicant brought on record complete order sheet of the trial court. From perusal of the order sheet, it appears that on 01.09.2023, non bailable warrant and also proclamation under Section 82 Cr.P.C. was issued against the respondent no. 2 through Senior Superintendent of Police for which the applicant was directed to take steps within three days. Thereafter, steps were taken by the applicant and subsequently,

on 20.11.2023, the trial court took cognizance on this aspect and constituted a Special Police team for execution of non bailable warrant.

7. I have perused the impugned order. Admittedly, non bailable warrant was issued against the respondent no. 2 including proclamation under Section 82 Cr.P.C. Once warrant has been issued, then accused cannot be acquitted, by giving benefit of Section 256 (1) Cr.P.C., who fails to appear in the court in obedience of the summons issued by the Magistrate.

8. No doubt the Legislature has intended that a person who has appeared in Court, in obedience to summons and who does not deserve to be prosecuted on the basis of a defective complaint or for some other strong reason, shall be acquitted at the earliest stage of the case if complainant is absent. He shall not be harassed at the instance of a complainant who fails to appear in Court, after having filed the complaint with the sole intention of harassing him or if he is not vigilant.

9. The intention behind S. 256(1) of the Code is to "prevent dilatory tactics on the part of complainants and consequent harassment to accused persons". Thus, there is a noble cause which is sought to be achieved by the Legislature by introducing S. 256 of the Code and the Court shall not ignore it.

10. However, S. 256(1) of the Code is most often misused, without understanding the scope of the provision or the intention of the Legislature. The said provision is seen invoked by Magistrate Courts in thoughtless haste, in a routine manner. The result is that the benefit of acquittal goes to an undeserving person who tries to defeat law, by evading process issued by Court. It also ends up in gross injustice being caused to a

complainant who vigilantly prosecutes a genuine complaint. The Legislature does not intend to achieve either of these results.

11. Therefore, it is desirable that at the earliest stage of the case itself, frivolous complaints (which are instituted only for harassing the accused) are weeded out. If Section 251 and 256 (1) of the Code are carefully applied, unmerited cases could be thrown out at the threshold itself and an accused may not have to approach the High Court to quash the proceedings under Section 482 Cr.P.C. In this context, the Magistrates are also alerted on the importance of exercising their power under Section 251 of the Code, as stated in the said provision. This section enables the Magistrate to know the defence of the accused at the earliest stage of the case.

12. On appearance of the accused, Section 251 of the Code enables the Magistrate is empowered to ask the accused, if he has "any defence to make". This will help the Court to do justice in deserving cases at the earliest stage, on knowing the defence of the accused, at the commencement of the trial itself. An accused need not unnecessarily be tied up to a proceedings in a Criminal Court, especially in cases where complainant remains absent. Section 256(1) comes to rescue of an accused, and a deserving person can be acquitted for mere non-appearance of complainant, at the early stage of the case itself. Even if the complainant appears in Court, the Court will be able to give preference to such cases and dispose of the same without delay.

13. In the present case, learned Magistrate acquitted the accused by invoking Section 256(1) of the Code. Further, Section 256(1) of the Code was misused to acquit an accused, whose presence could not be procured, despite repeated issuance of warrants. The Court also ignored the resultant injury which

might be caused to the complainant, who was vigilant in prosecuting his complaint.

14. After going through the impugned order, it appears that the trial court passed the order in thoughtless haste and without understanding the scope of the provision or its purpose and it has resulted in total miscarriage of justice.

15. Accordingly, present C482 application is allowed. The order dated 31.01.2024 passed by the Addl. Chief Judicial Magistrate, Haldwani, Nainital in Complaint Case No. 1324 of 2017 is set aside and the matter is remanded back to the trial to proceed with complaint and expedite the same keeping in the view the mandate of Section 143 of the Negotiable Instruments Act which stipulates that every proceedings under Section 138 of the NI Act should be concluded within six months.

(Rakesh Thapliyal, J.) 09.04.2024

SKS