Bombay High Court
Mr. Aseem Shabanali Merchant Legal Heir ... vs Mr. Brij Mehra, Prop. Brij Enterprises ... on 28 August, 2003
Equivalent citations: 2004CRILJ1268
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. Shri Shaikh submitted that the present appellant happens to be the Director of the Company which received cheques in question, which bounced. Answering the query, he submitted that the present appellant was not Director of the said Company when complaint in question was filed. He further submitted that on 5th March, 2001 and 7th March 2001 all the Directors were no more alive, because they had committed suicide. Answering the query Shri Shaikh submitted that there were only three Directors of the complainant Company and after the said unfortunate episode, the present appellant was the only serving Director. Shri Shaikh submitted that on the date when the said complaint was dismissed and the accused was acquitted, i.e. on 7/9/2002 the complainant and his Advocate were absent. It is his submission that in view of the judgment of the Supreme Court in the matter of Mohammed Azeem v. A. Venkatesh and Anr., reported in 2003 Bom. C. R. (Cri.) 146, the complaint should not have been dismissed. He prayed that leave be granted and appeal against the acquittal be admitted for final hearing.
2. Shri Samir Vaidya opposed this prayer and submitted that the said judgment of Supreme Court is applicable for solitary absence only. He submitted that on 7/9/2002 Advocate for the complainant did not even inform the Court that the complainant and other Directors had committed suicide, leave aside presentation of application for permitting the legal heirs of the complainant to continue the prosecution. He submitted that this is not a fit matter in which leave needs to be granted.
3. Chapter XX of the Code of Criminal Procedure, 1973 embodies procedure prescribed for conducting the trials for summons case by a Magistrate. Section 256 of the Code of Criminal Procedure, 1973 Sub-section (1) provides that:
"If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto 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.
Sub-section (2) provides that;
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. Thus, in view of Section 256 of the Code of Criminal Procedure, 1973 when the complainant happens to be absent and his Advocate also happens to be absent and the summons are issued to the accused, the Magistrate shall acquit the accused. If he finds that in the interest of justice it is necessary to adjourn the hearing of the case, he may adjourn it to some other day. If the complainant is represented by his pleader or by the officer conducting the prosecution, and when such complainant and his Advocate are absent, the Magistrate will have to dismiss the complaint and acquit the accused. In case the complainant is dead and Advocate for the complainant is present, he has to inform the Court about the death of the complainant by giving details to the Magistrate. The Advocate so present may make a prayer to the Magistrate to adjourn the hearing of the case by giving him some time to find out whether legal heirs of such complainant want to continue the prosecution. If such legal heirs want to continue the prosecution, such legal heirs have to submit an application to the Magistrate praying for permission to continue the prosecution. Such prayer can be made by such legal heirs of the dead complainant by remaining present in the Court, in person also. But when the complainant is dead, and his lawyer is also absent the Magistrate would be having no alternative but to dismiss the complaint and acquit the accused in summons cases.
5. The present case was a case, which was to be continued in view of Chapter XX of the Code of Criminal Procedure. On the date when said complaint was presented the present appellant was not the Director of the said Company. On the date when the said complaint was dismissed, he was not present before the Court nor lawyer of the complainant. Shri Shaikh has placed reliance on the judgment of the Supreme Court in the matter of Mohmmed Azim v. A. Venkatesh @ Anr. (Supra), but in that case, the absence was solitary one and therefore, this Court thinks that the Supreme Court was kind enough to give direction to the Magistrate to think properly and not to dismiss such cases, keeping in view the solitary absence of the complainant. But the present case, is a different case. The ratio of the Judgment of the Supreme Court in Mohd. Azeem's Case (Supra) would not be applicable to the present case. The Rozanama shows that on the occasion, i.e. on 10/1/2002, 4/4/2002 and 7/9/2002 the complainant and his Advocate were absent and then last entry comes which shows that the complaint was dismissed and the present respondents were acquitted.
6. Thus, this Court does not find any ground for admitting the appeal for final hearing. Leave is refused. The appeal stands dismissed.
Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this court.