2020 (3) TMI 514 - HC - Indian Laws

Dishonor of Cheque - acquittal of offence punishable U/s. 138 of N.I. Act in view of provisions of Sec. 256 of Cr. P. C. - issuance of summons - HELD THAT - Admittedly in this case, process, i.e., summons, has been issued and even plea has been recorded. Therefore, the judgment of this Court in BALIRAM S/O. RAMCHANDRA PATIL VERSUS ASHOK S/O. PUNDALIK PATIL 2017 (6) TMI 1322 - BOMBAY HIGH COURT relied upon by the counsel for appellant is not applicable to the facts and circumstances of this case. It is because in that case even process had not been issued. In this case, the conduct of the complainant has to be noted. On 18th February 1997, the plea of the accused has been recorded. On the date the impugned order was passed also the accused was present. The complainant remained absent on the date of hearing. The matter was adjourned and on 26th May 1997, when the accused was acquitted, the complainant and its advocate were again absent although repeatedly called till 4.00 p.m. The Magistrate also has noted that there is no application on record to adjourn the matter further. Further the impugned order is dated 26th May 1997. The appeal has been lodged on 10th November 1998, almost 1 years after the order of acquittal. Moreover, there is no explanation even in the appeal as to why the complainant or its pleader did not remain present on 26th May 1997 or the earlier date of hearing as recorded in the impugned order. If the summons has been issued on complaint and on the date appointed for the appearance of accused or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, acquit the accused, unless for some reason the Magistrate thinks it proper to adjourn the hearing of the case to some other day. Therefore, Section 256 mandates that if the complainant does not remain present on the appointed day after summons has been issued on complaint and unless attendance of complainant has been dispensed with, the Magistrate shall acquit the accused. If the Magistrate feels that the order of acquittal should not be passed on that date, the Magistrate has to give reasons - 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 Magistrate. There are no illegality in the order that requires this Court s interference - appeal dismissed.

Summary

Issues:
Acquittal order challenged under Section 378(4) of CrPC - Interpretation of Section 256 of CrPC - Complainant's absence during trial - Timeliness of appeal filing.

Analysis:
1. Acquittal Order Challenge: The appeal was filed under Section 378(4) of the Code of Criminal Procedure challenging an order of acquittal passed by the Judicial Magistrate, First Class. The impugned order acquitted the accused under Section 138 of the Negotiable Instruments Act due to the complainant's absence during the trial proceedings.

2. Interpretation of Section 256 of CrPC: Section 256 of the Code of Criminal Procedure was central to the judgment. The section mandates that if the complainant does not appear on the appointed day after summons have been issued, the Magistrate shall acquit the accused unless there are valid reasons to adjourn the hearing. The Magistrate's discretion in such cases must be exercised carefully, considering the fundamental right of the accused to a speedy trial.

3. Complainant's Absence: The judgment emphasized the significance of the complainant's conduct during the trial. In this case, the complainant remained absent on multiple occasions, leading to the accused's acquittal. The Magistrate noted the lack of application to adjourn the matter further and the absence of the complainant and advocate despite repeated calls.

4. Timeliness of Appeal Filing: The delay in filing the appeal, almost one and a half years after the order of acquittal, was also highlighted in the judgment. The appellant's claim of only becoming aware of the impugned order months after its passing raised questions about the seriousness of prosecuting the complaint and the right to a speedy trial.

5. Judicial Discretion: The judgment affirmed that the Magistrate properly exercised the wide jurisdiction granted under Section 256 of the CrPC in acquitting the accused due to the complainant's repeated absence without valid reasons. The discretion to adjourn the hearing or pass an order of acquittal must be supported by clear reasons, and in this case, the Magistrate's decision was found to be legally sound.

6. Conclusion: Ultimately, the appeal was dismissed, upholding the order of acquittal by the Magistrate. The judgment concluded that there was no illegality in the Magistrate's decision, and the discretion exercised was within the legal framework provided by Section 256 of the Code of Criminal Procedure.