Allahabad High Court
Sunil Mishra vs State Of U.P.Another on 3 April, 2015
Author: Pratyush Kumar
Bench: Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 12 Case :- APPLICATION U/S 482 No. - 47604 of 2014 Applicant :- Sunil Mishra Opposite Party :- State Of U.P.Another Counsel for Applicant :- S.C. Pandey Counsel for Opposite Party :- Govt. Advocate Hon'ble Pratyush Kumar,J.
The present application has been filed under section 482 Cr.P.C by the applicant/complainant (hereinafter referred to as the 'applicant') against the order dated 19.2.2014 passed by the judicial magistrate, court No.2, Allahabad in complaint Case No.437 of 2013 ( Sunil Kumar Mishra Vs. Arvind Singh) under Section 138 N.I. Act, whereby complaint dated 28.2.2013 filed by the applicant against Arvind Singh had been dismissed due to non- appearance of the applicant.
Heard Shri S.C. Pandey, learned counsel for the applicant, learned AGA and perused the record.
Opposite party No.2/accused ( hereinafter referred to as the 'opposite party no.2') in spite of the service of notice, has not appeared and also did not file any counter affidavit.
The relevant facts involved in the present case are as under:-
The applicant had filed the afore-mentioned complaint case against the opposite party no.2 before the court below with the averments that he gave loan of Rs. 8,25,000/- to the opposite party no.2 returnable by April, 2012. The borrower did not pay back the said amount. However, the opposite party no.2 gave two cheques, one dated 8.12.2012 of Rs.5,25,000/- and second cheque dated 9.12.2012 of Rs.3,00,000/-. These cheques were deposited in the bank, which were dishonoured due to insufficient funds. After completing formalities, the applicant filed a complaint dated 20.3.2013 with the request to punish the opposite party no.2, under Section 138 N.I. Act.
The learned magistrate after recording the evidence under Sections 200 and 202 Cr.P.C summoned the accused for trial vide order dated 2.9.2013 by a detailed order, a copy whereof has been annexed with the supporting affidavit .2.
as Annexure No.2. On 10.10.2013, the applicant was seriously ill due to his spinal problem and could not attend the Court on 19.2.2014.
The learned magistrate by the impugned order, had dismissed the case for non-appearance of the complainant. Thereafter, the applicant filed the second complaint when it came to his knowledge that the second complaint is not maintainable, he filed the present application U/S 482 Cr.P.C before this Court.
Learned counsel for the applicant in support of the application has put two fold arguments. On one hand, he has argued that the impugned order, certified copy whereof has been annexed as Annexure no.4 to the supporting affidavit, is illegal because when complainant is absent in a complaint case under section 256 Cr.P.C, the magistrate was empowered to acquit the accused. In the present case, the magistrate has simply dismissed the complaint without applying his mind to the provisions contained in section 256 Cr.P.C, which is evident from the fact that the magistrate had not acquitted the accused instead he has simply written, complaint is dismissed.
His other argument is that the impugned order has been passed without application of judicial mind before invoking jurisdiction under Section 256 Cr.P.C, the magistrate should have formed the opinion whether there are some reasons or not, which make it desirable to adjourn the hearing of the case to some other date, as envisaged section 256 Cr.P.C.
Learned counsel for the applicant has also referred the following cases in support of his arguments;
1. S. Rama Krishna Vs. S. Rami Reddi, JT 2008(4) SC 593.
The learned counsel for the applicant has extensively quoted para 9 and 10 of the report, which are as under:
" 9. The learned Magistrate in terms of sub-Section (1) of Section 256 exercises wide jurisdiction. Although an order of acquittal is of immense significance, there cannot be any doubt or dispute whatsoever that the discretion in this case had been properly exercised by the learned Magistrate.
10. The provisions of Section 256(1) mandate the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be .3.
spelt out the discretion conferred upon the learned Magistrate, however, must be exercised with great care and caution. The conduct of the complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period. Appellant had been attending the court for a long time, except on some dates where when remained absent or was otherwise represented by his Advocate."
2. S. Anand Vs. Vasumathi Chandrasekar, JT 2008(2) SC 345.
Para nos.9, 10 and 11 of the report has been referred by the learned counsel for the applicant in support of his arguments, they are as under:
" 9. Chapter XX of the Code of Criminal Procedure deals with trial of summons cases by Magistrates.
Section 256 of the Code reads 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."
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."
Since opposite party no.2 has not chosen to file counter affidavit, the facts involved in the present application are taken to be not disputed with this regard. More so copies of the complaint, summoning order and impugned order are sufficient to convince the Court that only controversy involved in this case .4.
is that after summoning of the accused under the N.I. Act, non- appearance of the complainant would be itself sufficient for the magistrate to dismiss the complaint without taking into consideration facts of the matter and all surrounding circumstances.
In order to examine the legality of the impugned order, it would be, a proper course to first place on record the correct legal position in respect of proper exercise to power conferred by Section 256 of Cr.P.C on the magistrate.
In Associated Cement Co.Ltd. Vs. Keshvanand reported in AIR 1998 SC 596, the Apex Court has occasion to express its valuable views in this regard. Relevant observations find place in paragraph no.18 of the report, quoted herein below:
" 18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the magistrate shall not acquit the accused. Second is, when the magistrate considers that personal attendance of the complainant is not necessary on that day the magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice."
I have also taken into consideration the two cases decided by High Courts, wherein views on similar point have been expressed.
In M/s Jindalpipes Ltd. V. M/s Beard Sell Satec Ltd. & Ors. reported in 2006 CRI. L.J.3170 Madras High Court, after quoting the aforesaid observations of the Apex Court has passed an order, whereby dismissal of complaint on the ground of non-appearance of the complainant, being mechanically was held arbitrary and illegal, therefore, set aside.
.5.
Sikkim High Court in Suresh Subba V. Udai Sarkar reported in 2009 CRI. L.J.3925 was also seized with the similar controversy after noticing several judgments including of the Apex Court passed in S. Anand's case (supra). The Sikkim High Court set aside the order of dismissal on the ground that dismissal of complaint was not out come of exercise of judicial discretion properly and judicially.
Now, I come to the case referred by the learned counsel for the applicant in S. Anand's case (supra), the Apex Court has noticed the provision contained in section 256 Cr.P.C and observed that when the witnesses of the complainant had been examined and the case was listed for defense evidence, dismissal of complaint under section 256 CR.P.C would not be a proper exercise of discretion.
In S. Rama Krishna's case (supra), the Apex Court has emphasized the need that discretion conferred by section 256 Cr.P.C must be exercised with care and caution.
Bare reading of the provisions contained in section 256(1) Cr.P.C is sufficient to show that the magistrate before acquitting the accused under the said provision is required to satisfy himself judicially whether there exists proper reason to adjourn the case for hearing on some other date. Proviso to the said sub-section further prescribes that, if any, pleader or prosecuting officer is representing the complainant or where personal attendance of the complainant is not necessary. The magistrate may dispense with his attendance and proceed further.
Since in summons cases acquittal of accused, under section 256 Cr.P.C amounts to acquittal, the discretion to take recourse to the said section is coupled with heavy responsibility to ensure that all the preconditions prescribed for exercise of discretionary power to acquit the accused due to non- appearance of complainant are non-existent, more so in a complaint case whereby complainant invokes the jurisdiction of the Court to punish the accused under Section 138 N.I. Act.
A little lapse in discharging the responsibility, exercise of their discretionary power conferred by section 256 Cr.P.C may result in miscarriage .6.
of justice, perhaps, in some cases, to the complainant.
I am of the opinion that before this discretionary power is exercised by the magistrate, he must ensure that there is no proper reason to adjourn the hearing of the case or personal attendance of the complainant is necessary, which should not be dispensed with, for conducting further proceedings of the case. Word 'proper' used in juxtaposition with reason prima facie appears to be undefined but exercise of judicial discretion here is dependent upon its non- existence, therefore, the word ' proper' has bearing with the further progress of the hearing of the case. As for example, if accused is absent on that date, no further hearing would be possible on that date, therefore, absence of the complainant would not materially affect the progress of the case on that occasion. In given circumstances, it may be a proper reason to take into account past conduct of the complainant. Another example may be when complainant has produced all his evidence, his absence on the date of recording of the statement of the accused may not jeopardize the further progress of the case and so on.
In view of the discussion made hereinabove, dismissal of any complaint under section 256(1) of the Cr.P.C due to non-appearance of the complainant can only be made by the magistrate after satisfying non-existence of any proper reason to adjourn the hearing of the case to some other date or the magistrate is of opinion that personal attendance of the complainant is must on that date for further progress of the hearing of the case.
When the legality of impugned order is examined in the light of the facts in hand and law referred hereinbefore, it is clear that the impugned order was passed in a manner which reflects non-application of judicial mind. The magistrate, even has not mentioned that he was acquitting the accused, who was present before him or non-appearance of the complainant was adversely affecting the proceedings of the case. He has not recorded any reason not to adjourn hearing of the case to some other date, keeping in view the preconditions provided for acquitting the accused. Thus the impugned order does not fall within the category of judicial order passed after exercise of proper discretion as envisaged under section 256(1) Cr.P.C for the magistrate.
.7.
The arguments advanced by the learned counsel for the applicant are substantiated from the record and find support from the law discussed hereinabove. The application u/s 482 Cr.P.C succeeds and the impugned order deserves to be quashed for securing the end of justice.
Accordingly, application U/S 482 No. - 47604 of 2014 is allowed. The impugned order dated 19.2.2014 is set aside and the matter is remanded back to the trial magistrate for further proceeding in complaint case No.437 of 2013 (Sunil Kumar Mishra Vs. Arvind Singh) under Section 138 N.I. Act, after restoring it to its original number, in accordance with law.
Order Date :- 3.4.2015 SFH