[Arising out of SLP (Crl.) No. 3772 of 2007]
S.B. Sinha, J.-
Appellant was being prosecuted in
the Court of Metropolitan Magistrate, Saidapet, Chennai for alleged
commission of an offence under Section 138 of the Negotiable Instruments
Act (for short the Act ) on the basis of a complaint petition filed by
the respondent herein.
3. In the said proceedings,
witnesses on behalf of the prosecution had been examined. Complainant
closed her case. A date was fixed for examination of the defence witness
and argument on 10.04.2006. However, the appellant filed an application
for cross-examination of the complainant herself which was rejected. A
revision application was filed thereagainst in the Court of the Sessions
In the said revision application, no
order of stay was passed. Whereas the appellant had continuously
remained present before the Trial Judge, the complainant remained
4. On or about 18.04.2006, the
appellant filed an application for his acquittal on the ground of
absence of the complainant. By an order dated 24.04.2006, the learned
Metropolitan Magistrate acquitted the accused under Section 256(1) of
the Code of Criminal Procedure stating:
Complainant absent. No
representation for several hearings. Accused present. Petition u/s
256(1) Cr. P.C. is allowed. Complainant continuously absent from the
hearing date 3.3.05. Hence, Complainant called three times. Neither the
complainant nor his counsel represent before the Court till 5.30 p.m.
CW1 examined. Hence Accused is acquitted u/s 256(1) of Cr.P.C.
5. An appeal was preferred
thereagainst before the High Court. The same was allowed relying on or
on the basis of a decision of this Court in Associated Cement Co. Ltd.
v. Keshvanand [(1998) 1 SCC 687 : AIR 1998 SC 536].
6. We may, at the outset, notice
that before passing the impugned order, the High Court did not choose to
serve notice upon the appellant opining that no useful purpose would be
served in keeping the appeal pending and one G. Vinodkumar was appointed
as a legal aid counsel. Aggrieved thereby, the appellant is before us.
7. It was submitted by Mr. Anand,
appearing in person, that the complainant having remained absent for
more than one year, the High Court ought not to have interfered with the
discretionary jurisdiction exercised by the learned Metropolitan
Magistrate, particularly when he had been appearing in person and the
complainant not only executed a power of attorney in favour of another,
a lawyer was also appointed.
Mr. Anand would submit that it was
obligatory on the part of the advocate who is an agent of his client to
appear on the dates of hearing, more so when an accused had been
appearing in person and remained present in court for all the days of
hearing. In any event, it was urged, the High Court committed a serious
error in disposing of the appeal only upon hearing a legal aid counsel
and even the submissions made by him had not been noticed.
8. Mr. A. Regunathan, learned senior
counsel appearing on behalf of the respondent, however, submitted that
in view of the fact that the matter was adjourned for examination of DWs,
the learned Magistrate could not have exercised its jurisdiction under
Section 256 of the Code of Criminal Procedure.
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.
12. The accused was entitled to file
an application under Section 311 of the Code of Criminal Procedure. Such
an application was required to be considered and disposed of by the
learned Magistrate. We have noticed hereinbefore that the complainant
did not examine herself as a witness. She was sought to be summoned
again for cross-examination. The said prayer has not yet been allowed.
But, that would not mean that on that ground the court would exercise
its discretionary jurisdiction under Section 256 of the Code of Criminal
Procedure at that stage or the defence would not examine his witnesses.
13. Presence of the complainant or
her lawyer would have been necessary, as indicated hereinbefore, only
for the purpose of cross-examination of the witnesses examined on behalf
of the defence. If she did not intend to do so, she would do so at her
peril but it cannot be said that her presence was absolutely necessary.
Furthermore, when the prosecution has closed its case and the accused
has been examined under Section 311 of the Code of Criminal Procedure,
the court was required to pass a judgment on merit of the matter.
14. We are not concerned herein as
to whether the constituted attorney of the complainant could represent
Reliance in this behalf having
placed on Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (Dead) By
Lrs. [(2004) 12 SCC 509] need not, thus, be considered by us.
15. Similar contention of the
complainant that the advocate is an agent of his client and it is his
duty to appear on behalf of his client, in our opinion, is beyond the
scope of this appeal.
16. We, therefore, although do not
approve the manner in which the appeal has been disposed of by the High
Court, are of the opinion that it is not a fit case where we should
exercise our jurisdiction under Article 136 of the Constitution of
17. However, keeping in view of the
fact that the complaint petition was filed as far back on 10.01.2002,
the learned Trial Judge should proceed with the matter in accordance
with law and dispose of the case as expeditiously as possible. On the
date(s) on which the accused remains present, the complainant would not
take any adjournment and in the event she does not choose to be
represented in the court, the court shall proceed in the matter in
accordance with law. Both the accused and complainant are directed to
appear in the Trial Court within two weeks from date.
17. The appeal is dismissed with the
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