2020 (12) TMI 1003 - HC - Indian Laws

Dishonor of Cheque - funds insufficient - acquittal of accused - rebuttal of presumption - Whether the Trial Court has committed an error in acquitting the accused? - HELD THAT - It is clear that though P.W.1 was examined in the month of March 2009, the complainant had not appeared before the Magistrate. Hence, taken as 'no cross'. Subsequently, an application was filed and the same was considered by the Trial Court and passed an order on 29.05.2010. In spite of the Magistrate being lenient in considering the application filed under Section 311 of Cr.P.C, again the complainant did not choose to appear before the Magistrate. However, an opportunity was given till October 2010. No application was filed to recall the earlier order and the Magistrate proceeded to pass an order on merits and acquitted the accused. The main contention of the learned counsel for the complainant is that the Magistrate ought to have dismissed the complaint for non-prosecution ought not to have proceeded to pass an order. The fact that P.W.1 has been examined before the Trial Court is not in dispute and documents-Exs.P1 to P8 are also marked - On perusal of the order sheet, it shows that the trial Judge has taken as 'no cross' when P.W.1 did not appear before the Trial Court and there is no order for expunging the evidence of P.W.1 and the same is only the submission made by the learned counsel for the accused before the Trial Court that the evidence was expunged. In spite of sufficient opportunity was given to the complainant for about two years, the complainant did not make any efforts to recall the earlier order and even though once the order was recalled and again, an opportunity was given, she did not appear before the Trial Court. The Trial Court proceeded to pass an order since the evidence of P.W.1 remains but only not rendered for cross- examination. The matter has not been decided on merits and the complainant has filed the complaint against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. When the matter is not decided on merits, the reason assigned by the complainant is also that her son due to fall he has sustained the injuries and she was taking care of her son. This Court can set aside the order and remand the matter for fresh consideration and to decide the matter on merits - Appeal allowed by way of remand.

Summary

Issues involved:
1. Trial Court's error in acquitting the accused.
2. Appropriate order to be passed.

Issue 1: Trial Court's error in acquitting the accused
The appeal challenges the Judgment of acquittal dated 11.11.2010 passed in C.C.No.1913/2008. The complainant alleged that the accused owed a sum of ?1,50,000 and issued a cheque which bounced due to insufficient funds. The Trial Judge noted the complainant's absence for cross-examination and her subsequent non-appearance. The complainant's counsel failed to argue the case, and no 313 statement was recorded due to lack of incriminating evidence. The Trial Judge acquitted the accused based on the available material. The appellant argued that the Trial Court should have dismissed the case for non-prosecution, considering the complainant's reasons for absence. The appellant contended that the Trial Judge erred in proceeding to acquit without evidence. The Trial Court's decision was deemed illegal, necessitating the High Court's intervention.

Issue 2: Appropriate order to be passed
Upon reviewing the Trial Court's order sheet, it was found that the complainant was examined but did not appear for cross-examination despite multiple opportunities. The Trial Court allowed an application under Section 311 of Cr.P.C for the complainant to appear, but she remained absent. The Trial Court granted ample time until October 2010, yet the complainant did not take any action. The High Court observed that the matter was not decided on merits, and the complainant's reasons for absence were considered. Given the complainant's conduct and the incomplete trial, the High Court set aside the Trial Court's acquittal judgment and remanded the case for fresh consideration on merits. The High Court also imposed a cost of ?5,000 on the complainant, directing her to deposit it before the Trial Court. The Trial Court was instructed to restore the file upon receiving the cost and to proceed with the case, with both parties summoned for a specified date.

In conclusion, the High Court allowed the appeal, set aside the Trial Court's acquittal judgment, and remanded the case for fresh consideration on merits. The complainant was directed to deposit a cost of ?5,000, with specific instructions on its distribution. The Trial Court was directed to proceed with the case promptly upon receipt of the cost deposit.