Amarchand vs Sanjeev Rastogi

N. Dhinakar, J.—The complainant in C.C. No. 77 of 1993 on the file of Judicial Magistrate No. I, Erode, challenges the order of acquittal

passed by the said Magistrate against the respondent/accused, by invoking Section 256, Cr.P.C.

Though notice, was issued to the respondent, he has not chosen to be represented by a counsel not is he present in Court to contest the appeal.

The proceedings against the respondent were initiated by way of a private complaint for an offence punishable u/s 138 of the Negotiable

Instruments Act, on the allegation that the cheque issued by the respondent, when presented with the bankers, returned dishonoured, with an

endorsement, ''''Insufficiency of Funds"", and the statutory notice issued subsequently also did not evoke any response.

After the complaint was filed, notice was issued and the case was adjourned to 1-6-1993. A petition was received from the respondent

requesting further time for his appearance, The appellant/complainant though was present in Court on that day, the case was adjourned to 2J.-6-

1993 and thereafter to 15-7-1993. As the respondent did not appear even by then, a warrant was issued. The case was then adjourned to 17-8-

1993 and then to 7-9-1993. From 7-9-1993, the case was adjourned once again to 5-10-1993 as the warrant was not executed. On that date, a

petition filed to recall the warrant, u/s 70(2), Cr. P.C, was allowed. On the next day, the respondent was questioned and he pleaded not guilty and

the case was adjourned to 3-11-1993 for examination of the witnesses. On all the dates of hearing, the appellant was present. On 3-11-1993, the

appellant was present, but the respondent was absent and the petition filed u/s 317, Cr. P.C, was allowed and the case was adjourned on 17-11-

1993, on which date, the respondent was absent though the appellant was present. The petition filed u/s 317, Cr.P.C. on that day was also

allowed and the case was adjourned to 1-12-1993. On 1-12-1993. the respondent was absent in Court. No petition was filed and a warrant was

issued by the learned Magistrate on that day. The case was adjourned to 29-12-1993. On 29-12-1993, the learned Magistrate was on leave and

though the appellant was present, the case was adjourned by the in-charge Magistrate to 19-1-1994. On 19-1-1994, since the respondent was

absent though the appellant was present, the case was adjourned to 16-2-1994, and then to the following dates : 16-3-1994, 6-4-1994, 4-5-

1994, 1-6-1994, 6-7-1994, 3-8-1994, 7-9-1994 and thereafter finally to 5-10-1994. On the above dates of hearing, the appellant was diligent

and was present in Court though the respondent was absent. The non-bailable warrant issued against the respondent was also pending execution

during that period. On 5-10-1994, when the case was called, the appellant was not present and the learned Magistrate immediately invoked

Section 256, Cr.P.C. and acquitted the respondent.

The learned counsel for the appellant submits that the learned Magistrate caused grave injustice to the appellant by acquitting the respondent by

invoking Section 256, Cr.P.C. He further submits that the appellant was diligent in prosecuting the complaint and was present on all the dates of

hearing except on 5-10-1994. I see every force in the above contention. The dates, which I have extracted above, show that the respondent

entered his appearance briefly for a day only to plead not guilty and then to abscond. The non-bailable warrant issued was not executed in spite of

sufficient opportunities given to the police. For the non-appearance of the respondent, the appellant cannot be blamed as he was appearing on all

the dates of hearing from the year 1993 to the end of 1994. He was not absent even for a day. Only on 5-10-1994, he was absent, when the case

was called. The respondent was also absent on that date. Even if the appellant had been present, the learned Magistrate could not have proceeded

with the trial as the non-bailable warrant was not executed. Under the above circumstances, the learned Magistrate could have adjourned the case

to some other date instead of invoking Section 256, Cr.P.C. It looks as if the learned Magistrate wanted to terminate the proceedings and had

taken a short-cut to justice by invoking Section 256, Cr.P.C. though he knew very well that he could not proceed with the trial on account of the

absence of the respondent.

The Supreme Court in Associated Cement Co. Ltd. Vs. Keshvanand, held that if the trial Court cannot proceed with the trial on a particular

date, it shall not axe down the case merely because the appellant was absent since even if the appellant had been present on that day, the Court

could not have proceeded with the trial.

In my view, the order of the learned Magistrate deserves to be set aside and it is, accordingly, set aside. The appeal is allowed and the matter is

remanded back to the trial Magistrate for fresh disposal according to law.