1.0 Present Criminal Appeal has been preferred by the appellant original complainant to quash and set aside the impugned judgment and order of acquittal dated 27.2.2012 passed by the learned Additional Chief Judicial Magistrate, Rajkot in Criminal Case No. 3298 of 2007 by which, the learned Chief Judicial Magistrate has acquitted respondent no.2 herein original accused for the offence under Section 138 of the Negotiable Instruments Act in absence of the complainant and in exercise of powers under Section 256 of the Code of Criminal Procedure.
2.0 That the appellant herein original complainant has instituted/ filed Criminal Case No.3298 of 2007 against respondent no.2 original accused for the offence under Section 138 of the Negotiable Instruments Act. It appears that the learned Chief Judicial Magistrate directed to issue summons/ process against the accused by order dated 27.4.2007. It also appears that plea of the accused came to be recorded by the learned Magistrate on 16th March 2009 and respondent no.2 hereinoriginal accused pleaded not guilty and therefore, he came to be tried. It also appears that thereafter the examination in chief on affidavit was produced by the complainant on 18.5.2009. Thereafter, the accused did not appear before the learned Magistrate, however submitted the application for exemption, which came to be granted. However thereafter, he did not appear before the learned Magistrate and therefore, the application was submitted by the complainant on 14.12.2009 requesting to pass an order to close the right of accused to cross examine the complainant. The said application was fixed for hearing. That thereafter, also the accused did not remain present and therefore, an application Exh.19 was submitted by the complainant requesting to issue warrant against the accused. It appears that thereafter the complaint was on board before the learned Magistrate on 27.2.2012. However, neither the complainant nor his advocate remained present and therefore, recording that the case is very old and as the complainant is not remaining present and despite the notice he is not remaining present it appears that he is not interested to proceed further with the case and therefore, in absence of complainant, the learned Magistrate by impugned order has acquitted the accused in exercise of powers under Section 256 of the Code of Criminal Procedure.
2.1. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Magistrate, Rajkot dated 27.2.2012 passed in Criminal Case No. 3298 of 2007, the appellant herein original complainant has preferred the present appeal.
3.0 Shri Tolia, learned advocate for the appellant has vehemently submitted that as such the learned Magistrate has materially erred in dismissing the complaint and acquitting the accused in exercise of powers under Section 256 of the Code of Criminal Procedure by observing that appellantcomplainant is not interested in proceeding further with the complaint. It is submitted that as such appellant hereinoriginal complainant is very much interested from the very beginning to proceed further with the complaint and to prosecute the accused for the offence under Section 138 of the N.I. Act. It is submitted that as such it was the accused who was not cooperating and in fact the appellant was constrained to file the application to close the right of the accused to cross examine the complainant. It is submitted that as the accused was not remaining present even the learned Magistrate directed to issue warrant against the accused. It is submitted that as such the appellant original complainant submitted his examination in chief on affidavit at the earliest and it was the accused who was not cooperating and cross examining the complainant. Therefore, it is requested to allow the present appeal and quash and set aside the impugned order and remanding the matter to the learned Chief Judicial Magistrate to proceed further with the trial and complete the same at the earliest. He has also stated at the bar that for not remaining present on the date on which the learned Magistrate passed an impugned order, the appellant can be saddled with the reasonable cost. However, has requested to give an opportunity to the complainant to proceed further with the trial.
4.0 Present Appeal is opposed by Shri Jasani, learned advocate for the original accused. He has submitted that as such no cause has been shown why the complainant and / or his advocate did not remain present before the learned Additional Chief Judicial Magistrate on the date on which the learned Magistrate passed the impugned order. It is therefore, submitted that when neither complainant nor his advocate remained present and no cause has been shown why the complainant could not remain present, no illegality has been committed by the learned Magistrate in dismissing the complaint and acquitting the accused while exercising the powers under Section 256 of the Code of Criminal Procedure.
4.1. Shri Jasani, learned advocate for the original accused has heavily relied upon the decision of the Hon'ble Supreme Court in the case of S. Rama Krishna vs. S. Rami Reddy (D) by his LR and Others reported in (2008) 5 SCC 535 in support of his prayer to dismiss the present appeal.
5.0 Ms. Shah, learned Additional Public Prosecutor for the State has requested to pass appropriate order considering the facts and circumstances of the case.
6.0 Heard the learned advocates for the respective parties at length and considered the impugned order passed by the learned Additional Chief Judicial Magistrate, Rajkot dismissing the complaint/ criminal case filed by the appellant hereinoriginal complainant filed against the respondent no.2 hereinoriginal accused for the offence under Section 138 of the N.I. Act dismissing the said complaint in absence of complainant and consequently acquitting the accused while exercising the powers under Section 256 of the Code of Criminal Procedure. Considering the impugned order, it appears that the learned Additional Chief Judicial Magistrate has passed the impugned order observing that neither the complainant nor his advocate has remained present and even on earlier occasion neither the complainant nor his advocate had remained present and therefore, the complainant is not interested in proceeding further with the complaint. However, it is required to be noted that summons of the complaint / criminal case upon the accused came to be served in the year 2009 and the appellant for the first time appeared before the learned Judicial Magistrate in the month of February 2009 and his plea was recorded on 16.3.2009. Therefore, as such between 2007 to March 2009 there was no progress in the complaint at all. It appears that thereafter, it was the accused who sought adjournment. It has also come on record that the examination in chief on affidavit of the complainant was filed immediately after recording the plea of the accused i.e. on 18.5.2009. However, thereafter it was the accused who did not remain present before the learned Magistrate and did not cross examine the complainant. Therefore, the complainant was required to submit an application before the learned Magistrate to close right of the accused to cross examine the complainant which was kept pending and was fixed for hearing. Even thereafter, the accused did not remain present and therefore, the complainant submitted the application Exh.19 requesting the learned Magistrate to issue warrant against the accused and the said application was granted and the learned Magistrate passed an order directing to issue warrant against the accused. Considering the aforesaid facts and circumstances, it cannot be said that appellantcomplainant did not proceed further with the complaint and complainant was negligent in proceeding further with the criminal case. It is true that on the last date and / or one or two occasions the complainant and / or his advocate might have remained absent. However, considering the aforesaid facts and circumstances of the case when the accused has also tried to delay the proceedings and did not appeared before learned Magistrate, it appears to the Court that one opportunity should be given to the appellant to proceed further with the criminal case by quashing and setting aside the impugned order and by imposing reasonable cost which may be directed to be paid to the respondent no.2 herein.
7.0 Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of S. Rama Krishna(supra) relied upon by the learned advocate for the accused, on considering the said decision, it appears to the Court that the same shall not be of any assistance to the accused in the facts and circumstances of the case. In the case before the Hon'ble Supreme Court it was found that the complainant remained absent on 14 dates between 18.4.2005 to 23.1.2006 and thus it was found that complainant remained negligent.
8. In view of the above and for the reasons stated above and considering the cardinal principle of law that as far as possible the case should be considered on merits, the present appeal is allowed and the impugned order passed by the learned Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.3298 of 2007 dated 27.2.2012 is hereby quashed and set aside on condition that the appellant shall deposit the cost which is quantified at Rs.1500/ with the learned trial Court within the period of six weeks from today and same shall be permitted to be withdrawn by the original accused. Consequently aforesaid Criminal Case No. 3298 of 2007 is ordered to be restored to file and the learned trial Court to decide and dispose of the same in accordance with law and on merits at the earliest but not later than six months from today. Present appeal is allowed accordingly. Registry is directed to send the writ of this order to the learned trial Court immediately.
( M. R. Shah, J. ) “kaushik”