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CASE NO.: Appeal (crl.)  311 of 2008

PETITIONER: S. Anand

RESPONDENT: Vasumathi Chandrasekar

DATE OF JUDGMENT: 14/02/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T [Arising out of SLP (Crl.) No. 3772 of 2007] S.B. SINHA,  J :

1.      Leave granted.

2.      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 \023the Act\024) 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 Judge.         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 absent.   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:

\023Complainant 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.\024

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

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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:

\023256. Non-appearance or death of complainant. \027 (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.\024      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

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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 the complainant.   

    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 India.   

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 aforementioned observations.