2023 (3) TMI 119 - SC - Indian Laws

Dishonour of Cheque - acquittal of the accused - appellant submitted that the learned Magistrate while dismissing the complaints for nonprosecution lost sight of the proviso to sub-section (1) of Section 256 of the Code - HELD THAT - A plain reading of the proviso to sub-section (1) of Section 256 would indicate that where the Magistrate is satisfied that the personal attendance of the complainant is not necessary he can dispense with the attendance of the complainant and proceed with the case. Such a situation may arise where complainant s/prosecution s evidence has been recorded and to decide the case on merits complainant s presence is not necessary. In ASSOCIATED CEMENT CO. LTD. VERSUS KESHVANAND 1997 (12) TMI 629 - SUPREME COURT the purpose of inserting a provision like Section 256 of the Code was discussed and it was held that where the complainant had already been examined as a witness in the case it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus the order of acquittal was set-aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed. In the instant case it is noticed that there is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses - neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256 the court could proceed with the matter after dispensing with the attendance of the complainant. Further if the complainant had not appeared to press the application under Section 311 of the Code the learned Magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence. The learned Magistrate was not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere non-appearance of the complainant. The High Court too failed to take notice of the aforesaid aspects. Thus the orders impugned are liable to be set aside. The order(s) of the High Court as well as of the learned Magistrate are set-aside - Appeal allowed.

Summary

Issues:
Dismissal of criminal complaints for non-appearance of the complainant despite recorded statement and evidence.

Analysis:
The Supreme Court considered the appeal against the Delhi High Court's judgment dismissing criminal complaints for non-appearance of the complainant. The main issue was whether the learned Magistrate was justified in dismissing the complaints despite the recorded statement and evidence of the complainant. The appellant filed eight complaints under Section 138 of the Negotiable Instruments Act, with some complaints reaching the stage of cross-examination. The complainant's evidence was closed with a direction for defense evidence recording and consideration of an application under Section 311 of the Code of Criminal Procedure. However, the complaints were dismissed for non-appearance of the complainant, leading to the appeal.

The appellant argued that the Magistrate failed to consider the proviso to Section 256 of the Code, which allows proceeding with the case even in the complainant's absence under certain circumstances. The appellant cited previous court decisions to support the contention that evidence on record should enable the case to proceed in the absence of the complainant. On the other hand, the respondent argued that the Magistrate was justified in dismissing the complaints due to the complainant's absence and suggested treating it as an order of acquittal as per the provisions of Section 256.

The Court examined Section 256 of the Code, emphasizing the provision allowing the Magistrate to dispense with the complainant's attendance if not necessary. Referring to past judgments, the Court highlighted that when the prosecution has closed its case and the accused has been examined, the court should pass a judgment on the merit of the matter. The Court noted that the lower courts failed to consider the complainant's evidence and the application under Section 311 of the Code, which could have allowed the case to proceed without the complainant's presence. Consequently, the Court set aside the orders of the High Court and the Magistrate, restoring the proceedings to the original stage for further prosecution.

In conclusion, the Supreme Court allowed the appeals, emphasizing the importance of considering the evidence on record and the provisions of the Code before dismissing complaints for non-appearance of the complainant. The judgment highlighted the need for a thorough assessment of the case circumstances to ensure a just and fair legal process.