Calcutta High Court (Appellete Side)
Sri Rajendra Prasad Bajoria vs Sri Swapan Mukherjee on 20 December, 2017
Author: Asha Arora
Bench: Asha Arora
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present: The Hon'ble Justice Asha Arora
CRA 270 of 2012
Sri Rajendra Prasad Bajoria
Versus
Sri Swapan Mukherjee
For the appellant : Mr. Sardar Amjad Ali
Mr. Subhasis Mukherjee
Ms. Priyanka Das
For the Respondent : Mr. Tapan Dutta Gupta
Mr. Subhasish Pal Mr. Kashiswar Ghosal Heard on : 04.12.2017, 13.12.2017 and 20.12.20127 Judgment on : 20.12.2017 Asha Arora, J.:-
This appeal by special leave under section 378 (4) of the Criminal Procedure Code (for short referred to as the Cr. P. C.) is against an order dated March 3, 2011 passed by the learned Metropolitan Magistrate, 6th Court, Calcutta in Case No.C/781 of 2004 arising out of a complaint under Section 138 of the Negotiable Instruments Act, 1881 whereby the learned trial Court acquitted the accused (the respondent herein) under Section 256 (1) of the Criminal Procedure Code by the following order:-
"Accused person on bail Swapan Mukherjee is present. Complainant has filed one application seeking adjournment. On repeated call none appears to represent complainant or to move the adjournment application on this day fixed for further cross- examination of complainant PW-1 in terms of order dated 18/5/09 of this court.
It is now 11-50 A. M. Materials on record suggest that allowing the application of accd. person dated 9/2/09 u/s. 311 Cr. P. C. by order dated 18/5/09 of this court, complainant was directed to submit himself for his cross-examination on the next date fixed on 24/6/09. But since then even after expiry of more than twenty months has failed to submit himself for his cross-examination.
This day one adjournment application has been filed allegedly by complainant but none appears to move the application or represent complainant.
Hence, the adjournment application of complainant stands refused.
In view of given circumstances when accd. person is present along with his advocate and complainant is found unrepresented on this day fixed for adducing evidence by complainant, I find it fit to take recourse of provision contained in Sec. 256 Cr. P. C. to acquit the accused person.
Hence, it is Ordered that the accd. person is acquitted u/s. 256 Cr. P. C."
Learned counsel appearing for the appellant submits that it is a case under Section 138 of the Negotiable Instruments Act where the accused has been acquitted without considering the evidence on record. It is pointed out that the complainant has adduced evidence and several documents have been exhibited but the learned Magistrate, without looking into such evidence, acquitted the accused for non-appearance of the complainant. In such circumstances the learned Magistrate was not justified in taking recourse to the provision of section 256 (1) Cr. P. C. To fortify his submission learned counsel for the appellant placed reliance upon the decision reported in AIR 2008 Supreme Court 1296 in the case of S. Anand versus Vasumathi Chandrasekar. Reference has also been made to a decision of Madhya Pradesh High Court in the case of Right Services, Ratlam versus Chhotu Bhaiya Road Lines and another in 2004 CRI. L. J. 406 and a judgement of Bombay High Court reported in 2011 CRI. L. J. 3555 in the case of Terna Shetkari Sahakari Sakhar Karkhana Ltd. Osmanabad versus Anant Laxman Ghogre & Anr.
Learned counsel for the respondent countered that the order impugned is perfectly justified in view of the fact that several opportunities were given to the complainant to appear for further cross-examination but to no avail. Referring to sub-section (2) and (3) of Section 143 of the Negotiable Instruments Act, learned counsel for the respondent sought to impress that the trial of a case under Section 138 of the Act should be continued from day to day till its conclusion within six months from the date of filing of the complaint but in the present case several dates elapsed for further cross- examination of the complainant who chose not to appear in court on the dates fixed. Relying upon the decision reported in (2008) 2 Supreme Court Cases (Cri) 645 in the case of S. Rama Krishna versus S. Rami Reddy (dead) by his LRS and Others, learned counsel for the respondent submits that the discretion exercised by the trial Court under Section 256 (1) of the Criminal Procedure Code cannot be interfered with in such a case where it appears that the complainant was not interested in getting the matter prosecuted. On the point of interpretation of a provision of an Act, reference has been made to a decision reported in 2017 (4) AICLR 602 (Supreme Court) in the case of Kunal Kumar Tiwari @ Kunal Kumar versus State of Bihar and Another.
It is not in dispute that the complainant has already been examined in-chief on affidavit and cross-examined. Several documents on behalf of the complainant have also been exhibited. It is on record that on the basis of an application under Section 311 Cr.P.C. filed on behalf of the accused (respondent herein) the complainant was summoned for further cross-examination. It appears from the impugned order that several dates elapsed for further cross-examination of the complainant who, on some pretext or the other failed to appear in Court on the dates fixed. The learned Magistrate ultimately took recourse to the provision of Section 256 (1) of the Code of Criminal Procedure and acquitted the accused.
Section 256 of the Code of Criminal Procedure reads as follows :-
"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."
The question which arises for consideration is whether the provision of Section 256 can be resorted to in the facts of the present case where the complainant's evidence has already been recorded and the matter was posted for his further cross-examination on the basis of an application under section 311 Cr. P. C. It is evident that the complainant did not make himself available in Court for further cross-examination despite several opportunities given to him. True it is that a case cannot be allowed to remain pending for an indefinite period at the whim of the complainant but the discretion under section 256 Cr. P. C. should be exercised judicially and fairly without impairing the cause of administration of justice. In the circumstances of the present case the learned Magistrate was not justified in exercising the discretionary jurisdiction under Section 256 (1) of the Cr. P. C. in such a manner particularly in view of the fact that there was evidence on record on behalf of the complainant which ought to have been considered and the matter should have been proceeded with in accordance with law for disposal on merits. In the circumstances aforesaid, it would be in the interest of justice to set aside the impugned order and remand the case to the trial Court for proceeding with the trial in accordance with law and for disposal of the case on merits.
The decision cited by the learned counsel for the respondent in S. Rama Krishna's case (supra) is distinguishable on facts from the present case. In the judgement relied upon, no evidence had been adduced on behalf of the complainant. The decision in Kunal Kumar Tiwari's case (supra) is also not apposite for the purpose of the present case in hand.
Consequently the appeal is allowed by setting aside the impugned order and the case is remanded to the court below for proceeding with the trial in accordance with law.
The learned Magistrate will give opportunity to the parties to adduce and produce their respective evidence and the matter will be decided on merits. In the event the complainant or any of the witnesses examined on his behalf do not make themselves available for cross-examination, the learned Magistrate will proceed in accordance with law and dispose of the case on merits on the basis of the evidence already on record as well as on the basis of further evidence, if any to be adduced after remand without being influenced by any observation made hereinabove.
The learned Magistrate will dispose of the case as expeditiously as possible preferably within two months from the date of communication of this order without granting unnecessary adjournment to either of the parties.
The appeal is thus disposed of.
A copy of the judgement along with the lower court records be sent forthwith to the trial Court by Special Messenger at the cost of the appellant/complainant.
Urgent photostat certified copy of this judgement, if applied for, be given to the applicant upon compliance of requisite formalities.
(Asha Arora, J.)