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CASE NO.: Appeal (crl.)  755 of 2008

PETITIONER: S. RAMA KRISHNA

RESPONDENT: S. RAMI REDDY (D) BY HIS LRS. & ORS

DATE OF JUDGMENT: 29/04/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO. 755     OF 2008 (Arising out of SLP (Crl.) No. 1762 of 2007)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant issued two cheques for a sum of Rs. 5,00,000/- (Rupees  Five lakhs) each in favour of the original complainant -  i.e. S. Rami Reddy  (since deceased) on or about 9.1.2001 and 10.1.2001.   The said cheques were deposited in a bank for collection on or about  25.2.2001.  They were dishonoured.   Rami Reddy filed a complaint petition in the Court of Additional  Judicial Magistrate First Class, Kurnool purported to be under Section 138  read with Section 142 of the Negotiable Instruments Act, 1881 (for short  ’the Act’) on 6.6.2001.  It was registered as C.C. No. 368 of 2001.  Rami  Reddy expired on 28.10.2003.  Respondents herein filed an application for  substitution of their names in place of the said Rami Reddy on 22.12.2003.  Appellant filed an objection thereto.  No order was passed on the said  application.  The counsel appearing on behalf of the complainant started  representing the proposed heirs of the said Rami Reddy.  It appears that on  or about 18.4.2005 till 23.1.2006, i.e., on 14 dates nobody represented the  complainant.  3.      On 23.1.2006, noticing that the respondents had not been attending  the court for a long time, the appellant was acquitted by the learned  Magistrate in purported exercise of his jurisdiction under Section 256 of the  Code of Criminal Procedure.  An appeal was preferred thereagainst before  the High Court of Andhra Pradesh questioning the validity of the order dated  23.1.2006.   By reason of the impugned judgment, a learned single judge of the  High Court set aside the said judgment of acquittal holding:

"A perusal of the docket order passed by the Court  below, coupled with the extract of diary maintained by  the Court below, show that the matter has undergone  several adjournments due to the absence of the appellants  only, and ultimately, on 23.1.2006 the trial court passed  the impugned order.  From this it is clear that the  appellants are not interested in getting the matter  prosecuted.  However, as this Court has consistently  taken the view that any lis between the parties shall be  decided on merits rather than on technicalities, this Court  is of the view that the appellants may be given one more  opportunity to get the matter prosecuted."

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Appellant is, thus, before us.

4.      Mr. Guntur Prabhakar, learned counsel appearing on behalf of the  appellant, would submit that the High Court had committed a manifest error  in passing the impugned judgment insofar as it failed to take into  consideration that since the complainant remained absent for a long time,  there was no justification for setting aside the order of acquittal passed by  the learned Magistrate.   5.      The learned counsel appearing on behalf of the respondents, however,  supported the impugned judgment.   6.      Admittedly, the respondents themselves did not seriously press their  applications for their substitution in place of the original complainant.   7.      Section 256 of the Code of Criminal Procedure empowers a  Magistrate to pass an order of acquittal on non-appearance or death of the  complainant.   The complaint petition was filed in the year 2001.  Rami Reddy died  in 2003. A large number of dates were fixed for hearing of the case.  Although, on some dates, the respondents were either present in court in  person or were represented by their Advocate, but as noticed hereinbefore,  continuously for about 15 dates fixed for hearing, they remained absent.   The ingredients of Section 256(1) are: (i) that summons must have  been issued on a complaint, (ii) the Magistrate should be of the opinion that  for some reasons, it is not proper to adjourn the hearing of the case to some  other date; and (iii) the date on which the order under Section 256(1) can be  passed is the day appointed for appearance of the accused or any day  subsequent thereto, to which the hearing of the case has been adjourned.  It is not a case where the proviso appended to sub-Section (1) of  Section 256 of the Code was applicable.   8.      The matter remained pending for more than five years.  It was  obligatory on the part of the respondents to press their application for  substitution.  They did not file attendance of their witnesses.  The case was  fixed for hearing.   9.      The learned Magistrate in terms of sub-Section (1) of Section 256  exercises wide jurisdiction.  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 learned Magistrate.  

10.     The provisions of Section 256(1) mandate the Magistrate to acquit the  accused unless for some reason he thinks it proper to adjourn the hearing of  the case.  If an exceptional course is to be adopted, it must be spelt out the  discretion conferred upon the learned Magistrate, however, must be  exercised with great care and caution.  The conduct of the complainant for  the said purpose is of immense significance.  He cannot allow a case to  remain pending for an indefinite period.  Appellant had been attending the  court for a long time, except on some dates where when remained absent or  was otherwise represented by his Advocate.   He had to remain present in court.  He attended the court on not less  than 20 occasions after the death of the original complainant.  If in the  aforementioned situation, the learned Magistrate exercised his discretionary  jurisdiction, the same, in our opinion, should not have been ordinarily  interfered with.   

11.     The High Court was exercising its jurisdiction under sub-Section (4)  of Section 378 of the Code of Criminal Procedure. The appeal preferred by  the respondents was against a judgment of acquittal. The High Court should  have, therefore, exercised its jurisdiction keeping in view the limited role it  had to play in the matter.   

12.     The High Court itself had come to the finding that the respondents  were not interested in getting the matter prosecuted.  Despite the same, it  allowed their appeal, opining that any lis between the parties should be  decided on merits rather than on technicalities.  On what basis such a  statement of law was made is not known.  No precedent was cited; no reason  has been assigned.  The High Court failed to take into consideration the fact that it was

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dealing with an order of acquittal and, thus, the principle of law which was  required to be applied was that, if two views are possible, a judgment of  acquittal should not ordinarily be interfered with.   There exists a distinction between a civil case and a criminal case.  Speedy trial is a fundamental right of an accused.  The orders passed by the  competent court of law as also the provisions of Code of Criminal Procedure  must be construed having regard to the Constitutional scheme and the legal  principles in mind.   13.     The High Court, in our opinion, therefore, misdirected itself in  passing the impugned judgment.   It can therefore not be sustained.  We set aside the order of the High  Court accordingly. The Appeal is allowed.