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Judgment
V.S. Aggarwal, J.—By this common judgment the bunch of Criminal Revisions Nos. 100 of 1995, 101 of 1995, 102 of 1995, 103 of 1995 and 104 of 1995 can conveniently be disposed of together because the question of facts involved are identical.
Steel Authority of India, the petitioner, had filed a criminal complaint separately against the respondents. It pertained to an offence punishable u/s 138 of the Negotiable Instruments Act, 1881, as amended by the Central Act No. 66 of 1988. The learned Chief Judicial Magistrate, Faridabad, on September 18, 1993, passed an order summoning the respondents separately to face trial u/s 138 of the above said Act. The respondents had appeared and had been admitted to bail. An application had been filed by the petitioner praying that the petition has been filed through the manager of the public sector undertaking and he was posted out of Faridabad. It was prayed that his personal appearance may be exempted. On November 22, 1994, the learned Chief Judicial Magistrate, Faridabad, exempted the personal appearance of the petitioner till further orders. The case was listed for framing of the notice u/s 251 of the Code of Criminal Procedure. It was adjourned to November 30, 1994. On that date the trial court is alleged to have passed an order directing the respondents to be served with the notice. It was listed for December 8, 1994. On December 8, 1994, learned counsel for the petitioner was not present, as a result thereof the complaint was dismissed in default.
Aggrieved by the said order, the present revision petition has been filed.
The short question agitated that comes up for consideration is as to whether the trial court in the facts was justified in dismissing the complaint in the absence of counsel for the petitioner in default. Section 256 of the Criminal Procedure Code, 1973, provides the answer and runs as under :
"256. Non-appearance or death of complainant.--(1) If the sum mons has been issued on complaint, and 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, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day :
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
Under this provision when summons has been issued on the complaint, then on any day subsequent thereto if the complainant does not appear, the Magistrate shall dismiss the complaint or in other words acquit the accused. But this is not in absolute terms. The Magistrate can if he thinks proper, adjourn the hearing to some other day. Consequently, it is obvious that the Magistrate has to take care as to whether in the facts it would be appropriate to dismiss the complaint or to acquit the accused or to adjourn the case to some other day.
The real test in such like matters always is of good faith. It would necessarily imply as to whether the complainant was absent for any good reason or not, The said question came up for consideration before the Madras High Court in the case of Arumugham v. Valliammal [1982] 2 Cri. LJ 1609. The facts of the case were a little different because on the first call the complainant had appeared but not subsequently. However, in paragraph 7, the guidelines that were followed were to the following effect :
"Section 256(1) empowers the Magistrate to acquit the accused if on any date of hearing to which the case may be adjourned the complainant does not appear unless for some reasons he thinks proper to adjourn the hearing of the case to some other day. It cannot be said that the section contemplates that the order of acquittal should be a matter of routine and followed automatically on the absence of the complainant. All the surrounding circumstances and facts have to be taken into consideration before the Magistrate dismissed the case under the section. The section invests in the court a discretion. It should not be used for merely disposing of the case. In matters like this the real test will be good faith."
One finds agreement with the ratio of the decision in terms as already pointed that absence of the complainant or his counsel does not necessarily or automatically put an end to the complaint resulting in acquittal. The surrounding circumstances and facts have to be taken note of. Similar question was again considered by the Orissa High Court in the case of Nityananda Samal Vs. Naraprasad, The court was concerned with a complaint case. When the complainant was absent nor his witnesses were present, the court had passed an order of acquittal u/s 256 of the Criminal Procedure Code. The plea taken was that he had gone to call his counsel. Considering the scope of Section 256 of the Criminal Procedure Code, it was observed :
"In order to decide whether the presence of the complainant is necessary, the court should act judicially and not capriciously. A duty has been cast on the court to consider whether the personal attendance of the complainant is or is not necessary. In view of the discretionary power vested in the court, heavy responsibility rests on it in deciding as to whether to adjourn the case or to record an order of acquittal, The discretion vested in the court should be exercised carefully and not hastily. An order of acquittal u/s 256 of the Criminal Procedure Code would bar a fresh trial and, therefore, such an order is of immense significance. The order should show that the wide discretion vested in the court had properly been exercised."
Once again in the case of C.K. Sivaraman Achari Vs. D.K. Agarwall and Another, , the Kerala High Court held that merely because the complainant on the date fixed was not present, this does not mean that he was not diligent in prosecuting the case particularly when the accused himself was seeking the adjournment. The court considered three options available to the Magistrate and in paragraph 10, it observed :
"Under the section as it now stands three courses are open to the court in a case where the complainant is absent on the date of hearing. The Magistrate may (1) acquit the accused, or (2) adjourn the case for a future date, or (3) dispense with the attendance of the accused and proceed with the case. Which course is to be followed in a particular case is entirely left to the discretion of the court, which discretion, however, is expected to be exercised in a judicial manner. While exercising the discretion, the courts should not forget that their very existence is for dispensation of justice, no doubt within the framework of the statutes governing particular cases. But even such statutes should be availed of with a view to advance justice and not to deny it. A complainant usually approaches the court with a case that he has been wronged by the accused. While maintaining the presumption of the innocence of the accused, the court should not be harsh towards the complainant. Absence of the complainant on a particular day when the case was called could be for umpteen reasons."
It was further held that though the Magistrate is not bound by the provisions of the statute, there is nothing wrong in adjourning the case to another date particularly if the presence of the complainant was not required.
The attention of the court was drawn towards the Division Bench decision of the Allahabad High Court in the case of State Vs. Reva Chand, . The court had observed that if on the date of hearing, the complainant is absent while the accused is present, the court is bound to acquit the accused unless it thinks proper to adjourn or personal presence of the complainant is dispensed with. It shows that the consistent view which is not the subject matter of much controversy is that on the date fixed in the complaint case if the complainant is absent, the Magistrate shall acquit the accused unless for reasons he thinks it proper to adjourn the case. The proviso to Sub-section (1) of Section 256 of the Criminal Procedure Code, further adds that where the complainant is represented by a pleader or by an officer conducting the prosecution or where the Magistrate thinks that personal attendance of the complainant is not necessary, the same can be dispensed with. This is a judicial discretion to be exercised by the court. It need not be adopted as a short cut method to put an end to the litigation.
In the present case as already mentioned above, the personal presence of the manager of the petitioner had been exempted. Counsel had to appear on behalf of the petitioner. There is nothing to indicate that there was no good faith or due diligence to prosecute the complaint.
Strangely enough counsel abstained. It is high time that counsel representing the parties when the personal presence of the complainant is exempted should realise the importance of appearing in time on the date fixed. It is entirely for the petitioner to take appropriate steps against the said counsel. But the order of the learned trial court indicates that it was ignored that the personal presence of the manager of the petitioner had been exempted. It still records that the petitioner is absent. In these circumstances what was expected was that the Magistrate before dismissing the complaint in default should have recorded reasons as to why he does not deem it appropriate to adjourn the hearing. No such reasons were forthcoming and, therefore, the order as such cannot be sustained.
For these reasons, the order of the learned trial court is set aside. The case is sent back for retrial and directed to be restored to its original number. The parties are directed to appear before the trial court on April 16, 1996.