TMI Blog2023 (3) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... erits, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant against the order of Metropolitan Magistrate-04 (N.I. Act)/South East, Saket Courts, New Delhi (for short learned Magistrate ) dated 25.01.2019 dismissing Criminal Complaints No.621744/16, 1718/16, 1276/16, 1277/16, 621743/16, 621742/16, 12742/17 and 12744/17 for non-appearance of the complainant (the appellant herein). 3. The short question that arises for our consideration in these appeals is whether in the facts of the case, the learned Magistrate was justified in dismissing the criminal complaints for non-appearance of the complainant even though the statement of the complainant had been recorded and, vide order of the learned Magistrate dated 26.10.2017, the complainant s evidence was closed with a direction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant did not appear and ultimately the complaints were dismissed for non-appearance vide order dated 25.01.2019. 6. The order dismissing the complaints for non-prosecution was subjected to challenge before the Delhi High Court through eight separate petitions which came to be dismissed by a common order dated 07.11.2019 impugned in these appeals. 7. We have heard Shri Maninder Singh, learned Senior Advocate appearing for the appellant; and Mr. Samrat Nigam, learned Advocate for the respondents. 8. The learned counsel for the 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. It is submitted that the said proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 5 SCC 535 . 9. Per contra, the learned counsel for the respondent(s) submitted that sub-section (1) of Section 256 of the Code mandates the Magistrate to acquit the accused if, 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. It is submitted that since it is not in dispute that the complainant had filed an application under section 311 of the Code and the complainant remained absent from the proceedings, the learned Magistrate was justified in dismissing the complaint(s) for non-appearance of the complainant. It has also been urged that if there is any technical defect in dismissing the complaint(s) for non-appearance of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant s/prosecution s evidence has been recorded and to decide the case on merits, complainant s presence is not necessary. 11. In the case of S. Anand (supra), addressing a situation where the complainant was absent but had already examined his witnesses, this Court observed as follows: 12. 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 the complainant have already been examined. 13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses, if he wanted to do th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 13. In the instant case, we notice 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. In Paragraph 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant s cross-examination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW-1 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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