9911796707
TMI Blog2022 (5) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... he lower court record that on 20th July, 2017, the accused was examined under Section 251 of the Code of Criminal Procedure. Substance of acquisition under Section 138 of the Negotiable Instrument Act was stated and explained to him. He pleaded not guilty. Accordingly the case was fixed for trial. Next date for recording evidence was fixed on 30th October, 2017. On that date the complainant was present; the accused was represented under Section 205 of the Code of Criminal Procedure by his learned Advocate; however, trial of the case did not commence and the learned Magistrate suo moto adjourned the hearing of the case fixing 13th March, 2018 for evidence. On 13th March, 2018 the complainant was absent without any step. Therefore, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 256 of the Code has to record that there is no good reason for which it would be proper to adjourn the hearing of the case to some other date. The learned Advocate for the appellant next takes me to the impugned order. The relevant portion of the order runs thus:- "On perusal of the case record, I find that since 13th March, 2018 the complainant was absent without step. The complainant was directed to file show-cause but no show-cause has been filed till date. Such conduct of the complainant only reveals a delaying tendency on the part of the complainant. The complainant, thus, evidently shows a lack of interest on proceeding with the instant case. It is seen that the provision of Section 256 Cr.P.C is attracted to the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er decision of this court in Shri G. Sekhar vs Smt. K. Prasanna Jyoti Rao and Another reported in (2017) 3 Cri.LR (Cal) 524. 4. Referring to the decision of the Hon'ble Supreme Court in the case of The Associated cement Company Ltd. vs. Keshavanand reported in 1998 (1) SCC 687, it is submitted by the learned Advocate for the appellant that before applying to the provision of Section 256 of the Code of Criminal Procedure, the Magistrate ought to decide if the appearance of the complainant is necessary on the date when the accused is acquitted under Section 256 of the Code of Criminal Procedure. When the court notices that the complainant is absent on a particular date, the court must consider whether personal attendance of the complainant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the record. Therefore, this Court should not interfere with the order dated 10th April, 2018. It is contended by the learned Advocate for the respondent that while sitting in judgment over an acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or entirely unsustainable. If the appellate court answers the above question in the negative, the order of acquittal is not to be disturbed only on the ground that an alternative view might have been taken by the trial court on the basis of the evidence or materials on record. If there is no perversity in the findings by the learned Magistrate and the findings of the trial court do not suffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal of the case. The case was dismissed because the complainant failed to submit any application showing cause of his absence on the previous date. Absence of judicial discretion is apparent on the face of record. Because the learned Magistrate did not assign any reason in support of the requirement that it is not proper to adjourn the hearing of the case to some other date. 8. In view of the above discussion, this Court is of the considered opinion that the impugned order dated 10th April, 2018 is liable to be set aside. 9. Accordingly, the instant appeal is allowed on contest, however without cost. 10. The order dated 10th April, 2018 passed by the learned Metropolitan Magistrate, 3rd Court, Kolkata in C-79 of 2010 is set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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