2018 (1) TMI 1640 - HC - Indian Laws

Dishonor of Cheque - complaint came to be dismissed in default for non-presence and non-prosecution, when the case was listed for recording of defence evidence - Section 138 of the Negotiable Instruments Act - HELD THAT - In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 Cr.P.C. deals with a situation of non-appearance of death of complainant. When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 Cr.P.C. Keeping in view the effect of dismissal in default, the Magistrate is supposed to exercise his discretion with care and caution clearly mentioning in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other day - In present case, the case was at advance stage of hearing, statement of respondent under Section 313 Cr.P.C. had been recorded and case was fixed for recording defence evidence. The complainant was duly represented by the counsel, but his counsel has also failed to put in appearance before the Magistrate for which complainant may not be held liable directly, rather, absence of the complainant, as he has engaged a counsel to represent him, may be considered as justified under the bona fide belief that the counsel may attend his complaint in his absence. For recording statements in defence, presence of complainant was not necessary. The learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. From the stage of complaint, it is evident that presence of complainant, on that day, was unnecessary as the case was at final stage. The Magistrate instead of dismissing the complaint in default should have adjudicated upon the complaint on merit and for that purpose, he might have adjourned the case for a future date - In the impugned order, there is no finding of the Magistrate that the complainant was not pursuing the complaint honestly and diligently. There is no reference of previous history, if any, with regard to conduct of the complainant causing unnecessary delay on account of adjournments sought by him or for want of his presence. There is only reference of his absence on the date since morning till post-lunch session. Therefore, acquittal of the accused without adjudicating the case on merits, due to non-appearance of the complainant on the date of defence evidence, who was sincerely pursuing his remedy, is improper. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Dismissal of complaint under Section 138 of the Negotiable Instruments Act due to non-appearance and non-prosecution of the complainant during the trial.

Analysis:
The judgment pertains to an appeal against an order passed by a Judicial Magistrate dismissing a complaint under Section 138 of the Negotiable Instruments Act for non-presence and non-prosecution of the complainant during the defense evidence recording stage. The judgment discusses the applicability of Section 256 of the Code of Criminal Procedure (Cr.P.C.) in cases under Section 138 of the NI Act. It highlights that the Magistrate has discretion under Section 256 Cr.P.C. to either acquit the accused or adjourn the case if the complainant is absent, with provisions for representation by a pleader. The judgment cites precedents from the Allahabad High Court and the Supreme Court emphasizing the judicial and fair exercise of discretion by the Magistrate under Section 256 Cr.P.C.

The judgment underscores the importance of not automatically acquitting the accused in case of complainant's absence, stressing the need for a balanced approach to uphold the cause of justice. It references Supreme Court cases where dismissal of complaints solely based on the complainant's absence was deemed strict and unjust, emphasizing the need for a merit-based judgment. The judgment also discusses the duty of the Magistrate to assess the necessity of the complainant's presence for the progress of the case before dismissing the complaint under Section 256 Cr.P.C.

Furthermore, the judgment highlights the need for the Magistrate to exercise discretion cautiously, especially when the case is at an advanced stage, as in the present case. It notes that the absence of the complainant's counsel should not result in automatic dismissal, especially when the complainant had engaged representation. The judgment draws parallels with previous cases to support the argument that the Magistrate should have adjourned the case for a future date instead of dismissing the complaint in default.

In conclusion, the judgment allows the appeal, setting aside the impugned order of dismissal and directing the complaint to be registered and decided in accordance with the law. It emphasizes that the complainant's absence, coupled with the failure of the counsel to attend, was not sufficient grounds for dismissal, especially when the case was at a critical stage. The judgment reiterates the need for a balanced and fair exercise of discretion by the Magistrate in such matters to ensure justice is served.