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Judgment
A.K. Rajan, J.—This is an appeal against the order of acquittal for an offence u/s 138 of the Negotiable Instruments Act.
The impugned order reveals that the complainant was not present on a number of days; petitions u/s 256, Cr. P.C. were filed, and the case was
adjourned. Even thereafter, for four consecutive hearings, i.e.: on 2-8-2000, 16-8-2000, 6-9-2000, and 20-9-2000, neither the complainant nor
his counsel was present. The matter was adjourned to 2-8-2000 for arguments; on 2-8-2000 as well as on the subsequent dates of hearing on 16-
8-2000, 6-9-2000 also there was no representation for the complainant. Finally, the matter was adjourned to 20-9-2000. Even, on that date,
there was no representation for the appellant herein. Therefore, the accused was acquitted exercising power u/s 256(1), Cr. P.C.
Aggrieved against the said order, the present appeal has been filed.
The learned counsel for the appellant/ complainant submitted that there was nothing for the appellant to present on the aforesaid dates since he
has already adduced evidence. Moreover, since it is a summon case, order should have been passed based on the evidence available on records,
and the matter need not have to be posted for arguments.
The learned counsel for the respondents/accused submitted that though the order of acquittal may not be legal for the absence on single day by
the appellant, the appellant herein was absent continuously and therefore the order passed by the lower Court cannot be set aside. In support of
his contention, the learned counsel referred to the judgment of the Bombay High Court in Hotel Bandra International (P) Ltd. Vs. Mr. Brij Mehra,
Prop. Brij Enterprises and State of Maharashtra, . In that appeal the Bombay High Court dismissed the case stating that the ratio of the Judgment
of the Supreme Court in Mohd. Azeem v. Venkatesh, (2002) 8 Scale 331 (SC) : 2003 Bom LR (Cri) 146 case would not be applicable to the
facts of that case. The argument of the learned counsel for the respondents that the ratio laid down by the Supreme Court in Mohd. Azeem''s case
is not applicable to the facts of the present case, is acceptable.
But, at the same time, the arguments of the learned counsel for the appellant that the appellant had nothing to do on the said dates since he has
closed his evidence, and that since this is a summon case, the Court, should have passed orders on the basis of the evidence available on records
and that there was no need for posting it for arguments, are acceptable. As per Section 314, Cr. P.C. any party to a proceeding may address oral
arguments. If the party does not ad- dress arguments, a Magistrate or a Judge shall pass judgment based on the evidence. Since the appellant has
closed his evidence and the respondents did not want to examine any witness, the lower Court, instead of dismissing the case for non-appearance
of the appellant, should have passed orders on the basis of the evidence available on records. Therefore, the order of the lower Court dismissing
the complaint on the ground of non-appearance and acquitting the respondents is not legally sustainable. Hence the same is liable to be set aside
and it is set aside.
In the result, the criminal appeal is allowed and the matter is remitted back to the trial Court for passing orders on the basis of the evidence
available on records, within two months. The petitioner and respondents shall be given opportunity to putforth their case, if they so desire, by filing
an application for that, before passing orders.