A SURYANARAYAN vs G M JOSEPH RAJ

The Appellant / Complainant has preferred the instant Criminal Appeal before this Court as against the Judgment dated 20.10.2016 in

C.C.No.3605 of 2009 passed by the Learned Metropolitan Magisrate, Fast Track No.III, Saidapet.

At the outset, this Court points out that today, Crl.O.P.No.320 of 2017 [seeking Grant of Special Leave to prefer an Appeal] was allowed by

this Court for the reasons assigned therein.

The trial Court while passing the Impugned Judgment came to the conclusion that the ''Complainant never appeared for cross examination. The

case was pending for more than one year for cross of P.W.1. On 26.02.2016 this Court passed a conditional order that the complainant should

appear on 26.04.2016 for cross of P.W.1. Even after conditional order, the complainant had not appeared on 26.04.2016. Thereafter, the

complainant never took any steps to subject himself for cross of P.W.1 etc.,'' and ultimately, came to the conclusion that the case of the

complainant was not a reliable one and found the Respondent / Accused not guilty and acquitted him under Section 248(1) of Cr.P.C.,

According to the Learned Counsel for the Petitioner / Appellant / Complainant the ''Judgment of Acquittal'' passed by the trial Court dated

20.10.2016 in C.C.No.3605 of 2009 is against Law, weight of evidence and in negation of ''Principles of Natural Justice''.

The Learned Counsel for the Petitioner / Appellant urges before this Court that the trail Court had totally ignored the evidence of the

complainant as P.W.1 and in fact P.W.1 was cross examined by the Respondent / Accused. The Learned Counsel for the Petitioner / Appellant

projects an argument that on the side of the Respondent / Accused there was no challenge in regard to the documents marked during the cross

examination of P.W.1 (Complainant) on 29.10.2012. Therefore, the trial Court had committed an error in making an observation in the ''Judgment

of Acquittal'' that the Petitioner / Appellant / Complainant never appeared for cross examination.

The Learned Counsel for the Petitioner / Appellant proceeds to take a stand that on 26.04.2016 both the Petitioner / Appellant / Complainant

and the Respondent / Accused had not appeared before the trial Court and on their side, the Petitions under Sections 256 and 317 of Cr.P.C.,

were filed and allowed by the trial Court. In effect, the contention of the Learned Counsel for the Petitioner / Appellant is that the trial Court was

not correct in making an observation that the Petitioner / Appellant / Complainant never took any steps to subject himself for cross examination as

P.W.1.

The Learned Counsel for the Petitioner / Appellant brings it to the notice of this Court that on 09.06.2016, when the Petitioner / Appellant /

Complainant was present and was ready to subject himself for cross examination, the Respondent / Accused was absent and further, the

Accused''s Counsel had not cross examined P.W.1 (Complainant). However, this aspect of the matter was over looked by the trial Court before

closing the evidence of P.W.1.

Added further, the Learned Counsel for the Petitioner / Appellant proceeds to state that even on 20.07.2016, the Respondent / Accused''s

Counsel had not cross examined the Appellant / Complainant (P.W.1) although he was present.

It is represented on behalf of the Petitioner / Appellant that on 18.08.2016 both the Petitioner / Appellant / Complainant and the Accused were

present and due to Medical Leave of the Learned Magistrate (MMC) the matter was adjourned for Judgment. On 20.09.2016, also when both

the parties were present, again because of medical leave of the Learned Magistrate, the matter was posted to 20.10.2016.

Lastly, it is submitted on behalf of the Petitioner / Appellant that the trial Court should have seen that even on 20.10.2016 the Appellant /

Complainant''s Counsel had represented that cross examination of P.W.1 was not complete and P.W.1 was willing to submit for the same.

However, the trial Court had failed to consider that the Petitioner / Appellant had discharged his initial burden of the aspect of the ''Legally

Enforceable Debt'' and was cross examined once by the Accused''s Counsel on 29.10.2012 itself.

In response, it is the submission of the Learned Counsel for the Respondent / Accused that there are no genuine or justifiable reasons for this

Court to interfere with the ''Judgment of Acquittal'' passed by the trial Court in C.C.No.3605 of 2009.

Expatiating his contention, the Learned Counsel for the Respondent / Accused takes a plea that since the Petitioner / Appellant / Complainant

never took any steps to subject himself to cross examine, the trial Court opined that the case of the Petitioner / Appellant / Complainant was not a

reliable one and resultantly found the Respondent / Accused not guilty and acquitted him under Section 248(1) of Cr.P.C.,

The Learned Counsel for the Respondent / Accused brings it to the notice of this Court that on 29.10.2012, the Petitioner / Appellant /

Complainant was subjected to cross examination, which was not a complete one and since then, P.W.1 had not presented himself for continuation

of his cross examination. Therefore, the Respondent could not challenge / assail the documents since the cross of P.W.1 was not completed.

In any event, the core contention projected on behalf of the Respondent / Accused is that the ''Judgment of Acquittal'' passed by the trial Court

stands good based on the facts and circumstances of the present case, which float on the surface.

In so far as the present case is concerned, it is to be borne in mind that on 04.05.2015 before the trial Court both the Appellant / Complainant

and the Respondent / Accused were present and for marking of documents on the side of the Complainant / further cross of P.W.1, the matter

was directed to be called on 19.06.2015. Also on 19.06.2015, the Complainant was present and the Accused was also present. Further Chief

Examination of P.W.1 was taken on a Petition being filed under Section 311 of Cr.P.C., which was allowed on behalf of the Complainant''s side,

Exs.P.10 and P.11 were marked. The trial Court for further cross of P.W.1, posted the matter on 23.07.2015.

It appears that on 23.07.2015, the Complainant was present and the Accused was also present and for cross of P.W.1, the matter was

directed to be listed on 03.09.2015. Moreover, on03.09.2015, the respective parties were present, but, at the request of defence side, the matter

was directed to be listed on 11.09.2015. Again on 11.09.2015, both sides were present, but, at request of defence side, the matter was directed

to be listed on 12.09.2015.

It transpires that on 12.09.2015, the Complainant was absent and there was no representation on his side. However, the Accused was present

along with his Counsel. The matter was referred to Lok Adalat and was directed to be called on 29.09.2015. On 29.09.2015, the Complainant

(Appellant) was present. However, the Respondent / Accused was absent therefore, a Petition under Section 317 Cr.P.C., was filed and allowed

and for cross examination of P.W.1, finally the matter was directed to be listed on 14.10.2015. On 14.10.2015 the Complainant was absent and a

Petition under Section 256 of cr.P.C., was filed and allowed. The accused was present for the litigation of jurisdiction, the matter was directed to

be called on 02.11.2015. However, on 02.11.2015, the Learned Metropolitan Magistrate was on Restricted Holiday. But both sides were called

absent and there was no representation, matter was directed to be posted on 26.02.2016. On 26.02.2016, the Complainant was present, but, the

Accused was absent and therefore, a Petition under Section 317 Cr.P.C., was filed and allowed for cross examination of P.W.1, finally the matter

was directed to be listed on 26.04.2016 and it was made clear that otherwise sufficient order would be passed.

On 26.04.2016, the Complainant was absent, but, a Petition under Section 256 of Cr.P.C., was filed and allowed on his behalf. On behalf of

the Accused under Section 317 Cr.P.C., Petition was filed and allowed. It was observed that the Complainant had not appeared for cross of

P.W.1, already conditional order was passed on 26.12.2016, even after conditional order, the Complainant had not appeared, sufficient

opportunities were given, hence cross of P.W.1 was closed and for D.Ws, if any, finally the matter was directed to be called on 09.06.2016. On

09.06.2016, the Complainant was present, but, the Accused was absent and a Petition under Section 317 of Cr.P.C., was filed and the same was

allowed. For examination of D.Ws, finally the matter was directed to be listed on 20.07.2016 and it was made clear that otherwise sufficient order

could be passed.

It comes to be known that on 20.07.2016 in C.C.No.3605 of 2009 the Complainant and the Accused were present. The trial Court in its

Notes Paper had observed that already conditional order was passed on 09.06.2016. Even after conditional order was passed, the Accused''s

Counsel was not ready with D.Ws. Sufficient opportunities were given hence in the Interest of Justice, D.Ws were closed and was posted for

Judgment finally on 18.08.2016.

It is evident that on 18.08.2016, the Learned Metropolitan Magistrate was on Medical Leave, but both parties were present and the matter

was posted for Judgment on 20.09.2016, again on 20.09.2016, the Learned Metropolitan Magistrate was on Medical Leave, but, both parties

were present and the matter was directed to be listed on 20.10.2016. On 20.10.2016 the respective parties were present. The Judgment was

pronounced whereby and where under the Respondent / Accused was found not guilty and he was acquitted under Section 248(1) of Cr.P.C.,

A mere running of the eye over the ingredients of Section 256 of Cr.P.C., unerringly indicate that the Concerned Court, if it thinks that in a

situation it is wise to adjourn the case, then, the Magistrate Concerned shall not acquit the Accused. If the Learned Judicial Magistrate considers

that the personal appearance of the complainant is not essential / necessary on that date, he has enough power to dispense with his attendance and

proceed with the case. On default of complainant''s appearance, the trial Court has a discretion either to dismiss the complaint and acquit the

accused or to postpone the hearing date. But the power under Section 256 of Cr.P.C., is to be exercised with a great care, caution and that too in

a circumspect fashion by the trial Court. Even the presence or absence of an Advocate may be taken into account by the Magistrate concerned

when his determining whether to adjourn the case or not. If a complaint is represented by a Pleader as per Section 2(q) of Cr.P.C., his personal

appearance would not be considered as indispensable. The absence of complainant on the date of hearing cannot be a good ground for acquitting

an Accused in a routine and cavalier fashion. The crucial test would be whether the complainant or the accused was prevented for a bonafide

reason from not attending the particular date of hearing. In fact, when the complainant is absent on a given date of hearing then, no where the

Criminal Procedure Code enjoins that the complaint of the complainant should be dismissed or the accused ought to be discharged. Because of

non appearance of the complainant, it is not necessary that in all cases the accused shall be acquitted. More importantly, the trial Court should bear

in mind that the complaint under Section 138 of the Negotiable Instruments Act, 1881 ought not to be dismissed in the interest of deliverance

substantial justice, because of the reason that the Judgment of Acquittal for the non appearance of the complainant may bar a fresh perusal of the

case in respect of the same offence.

It is true that it is not for the Court or the Magistrate to wait from the Morning till the closure of the Court either for the Complainant or for the

Accused to make their presence before Court.

Be that as it may, as far as the present case is concerned, the loan transaction between the parties took place on 17.04.2005 and the case of

the Appellant / Complainant was that the Respondent / Accused had paid interest till 17.09.2006 etc., the case cheque Ex.P.5 was dated

27.11.2008, but the complaint was preferred by the Appellant / Complainant under Section 200 of Cr.P.C., in respect of an offence under

Sections 138 and 142 of Negotiable Instruments Act before the trial Court on 09.01.2009, nearly 8 years have rolled by in the present case. This

Court on going through the adjudicatory notings of the confidential notes paper of the trial Court in C.C.No.3605 of 2009 from 04.05.2015 till the

date of passing of the Judgment of the trial Court dated 20.10.2016, both the Appellant / Complainant (P.W.1) and the Respondent / Accused

were not appearing before the trial Court and obviously they have indulged in playing the game of ''musical chair'' and had procrastinated the

matter without any significant progression of the main case, of course, on merits.

Since the complainant had not appeared even inspite of the conditional order passed, the trial Court was perforced to close the case in respect

of evidence and posted the matter for Judgment and ultimately pronounced the Judgment. At this juncture, this Court is of the considered view that

when P.W.1''s cross examination was not yet completed and was in midway, then, the trial Court should not have closed the evidence on the side

of the complainant and posted the matter for Judgment. In this regard, this Court is of the considered view that such course of action adopted by

the trial Court in closing the evidence of P.W.1 and posting the main case of Judgment is not a prudent course of action. Therefore, this Court

without expressing any opinion on the merits of the matter in respect of the main case and also this Court keeping in mind yet another primordial

fact that no where the Criminal Procedure Code does envisages for dismissal of complaint or discharge of accused on the attended date of hearing

of the complainant or the accused are absent, this Court to prevent an aberration of justice and to promote substantial cause of justice sets aside

the impugned Judgment of Acquittal dated 20.10.2016 in C.C.No.3605 of 2009 Consequently, the Criminal Appeal succeeds.

In fine, the Criminal Appeal is allowed. The Judgment of the Trial Court in C.C.No.3065 of 2009 passed by the Learned Metropolitan

Magistrate, Fast Track Court-III, Saidapet is set aside by this Court for the reasons assigned in this Criminal Appeal. The matter is remanded

back to the trial Court for fresh consideration of the C.C.No.3605 of 2009 after restoring the same to file. In this regard the Learned Metropolitan

Magistrate, Fast Track Court-III, Saidapet is directed to restore the file in C.C.No.3605 of 2009 within two weeks from the date of receipt of

copy of this Judgment. Thereafter, the trial Court shall dispose of the main case on merits by passing a reasoned Judgment in a fair, impartial,

dispassionate uninfluenced and untrammelled with any of the observation made by this Court in this Appeal within a period of four months.

The Appellant / P.W.1 is directed to appear before the trial Court and to subject himself for cross examination by the Respondent / Accused.

The Appellant is also directed not to come out with lamed duck excuses for his absence. The Respondent / Accused is also directed to make his

appearance on all the future hearing dates of the main case.