Hemshekhar Jayantilal Shah vs State of Gujarat and 4 Ors.

Harsha Devani, J.—This appeal is directed against the order dated 9.9.2010 passed by the learned Metropolitan Magistrate, Negotiable Instrument Act, Court No. 6, Ahmedabad, whereby he has dismissed the complaint lodged by the appellant herein u/s 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as "the Act"). The appellant herein lodged a complaint against the respondents No. 2 and 3 herein u/s 138 of the Act on 5.3.2005, which came to be registered as Criminal Case No. 643 of 2005. Pursuant thereto, the statement of the appellant (complainant) came to be recorded on oath on 5.3.2005 and vide an order of even date, summons came to be issued to the accused u/s 138 of the Act and the matter was ordered to be listed on 15.4.2005. On 15.4.2005, the appellant and his advocate were present and the summons had been served upon the accused. The matter was adjourned. On 24.6.2005, the complainant and his advocate were present, however, the accused was not present, hence, bailable warrant came to be issued to the accused. On 16.9.2005, the complainant and his advocate were present, however, the accused was not present despite service of summons, hence, non-bailable warrant was ordered to be issued against the accused. On 27.1.2006, the learned advocate for the complainant was present, however, neither the accused nor his advocate was present, nor was any report submitted. The learned advocate for the complainant made an application for issuance of non-bailable warrant, which came to be allowed. On 27.4.2006, the complainant and his advocate were present, however, the accused was not present and the matter was adjourned as non-bailable warrant was to be issued against the accused. On 29.6.2006, once again the complainant and his advocate were present; however, the accused was not present. Since the non-bailable warrant was not served, the matter came to be adjourned. On 7.9.2006, the learned advocate for the complainant once again made an application for issuance of non-bailable warrant against the accused, which came to be granted. On 8.1.2007, the complainant was absent, but his advocate was present. However, the accused was not present, hence, the matter was adjourned. On 7.5.2007, the complainant and his advocate were present. The accused was not present; however, his advocate was present. Since the warrant had not been served, the matter was adjourned. On 6.5.2009, notice came to be issued to the complainant and the matter was adjourned to 10.8.2009. On 10.8.2009, the complainant was not present; however, the application for issuance of warrant came to be granted. The matter came to be adjourned to 10.9.2009. On 10.9.2009, the application for exemption made by the complainant came to be granted. The matter was kept on 30.11.2011. On 30.11.2011, the parties were absent and an application for issuance of warrant was made. The matter was adjourned to 9.2.2010. On 9.2.2010, once again the parties were absent; however, the learned advocate for the complainant was present. The matter was adjourned to 5.6.2010 for securing the presence of the complainant. On 5.6.2010, the parties were absent. The matter was adjourned to 17.7.2010. On 17.7.2010 and 7.8.2010, the parties were absent and the matter was adjourned to 9.9.2010 for securing the presence of the complainant. On 9.9.2010, all the parties were absent and hence, the impugned order came to be passed, whereby the learned Judge observed that despite the issuance of notice to the complainant, he has not remained present, nor had any report been submitted by him. It was also observed that despite the fact that the matter was called out several times, the complainant has not bothered to remain present before the court. Accordingly, the complaint came to be dismissed.

Mr. Ekant Ahuja, learned advocate for the appellant submitted that initially on all occasions, the complainant was remaining present before the court. However, on each occasion, the matter came to be adjourned as the accused failed to remain present and since the non-bailable warrant issued against the accused had not been served. According to the learned advocate, it is not necessary for the complainant to remain present on each date when the matter was listed on the board, because the court could have proceeded with the hearing of the case only after the accused remained present before the court and his plea was recorded in respect of the allegations levelled against him in the case. It was submitted that in the present case, the accused has failed to remain present before the court. Consequently, his plea has not been recorded. Under the circumstances, there was no question of proceeding further in the matter. Therefore, the learned Judge was not justified in dismissing the complaint only on the ground that the complainant had not remained present before the court. In support of his submission, strong reliance was placed on the decision of this court in the case of Dhulabhai Kalubhai v. Ganeshbhai Fulabhai and another, 1969 (X) GLR 582. It was submitted that the said decision would be squarely applicable to the facts of the present case and as such, the impugned order is required to be quashed and set aside, and the complaint is required to be restored to file.

On the other hand, Mr. D.R. Bhatt, learned counsel for the respondent No. 2 opposed the appeal and submitted that despite several opportunities having been granted to the complainant, he had failed to remain present before the court and as such, the learned Judge was justified in dismissing the complaint.

Before adverting to the merits of the case, it may be germane to refer to the law laid down by this court in the case of Dhulabhai Kalubhai v. Ganeshbhai Fulabhai (supra). In the said case, since the complainant was absent when the matter was called out, the learned Magistrate passed an order whereby the accused came to be acquitted u/s 247 of the Code of Criminal Procedure. The said order was subject matter of appeal before this court, wherein the court held as follows:

Apart from the reasonableness or sufficiency of the cause of his absence, it appears that the learned Magistrate has not properly followed the provisions of law relating to the procedure in respect of trial of summons cases under Chapter XX of the Criminal Procedure Code. Section 242 says that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted. Then section 243 says that if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. It is thereafter that we find section 244 of the Criminal Procedure Code which contemplates the procedure when no such admission of guilt has been made by the accused in the cause. Sub-section (1) of section 244 says that "if the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution...."

On a perusal of these three sections in Chapter XX of the Criminal Procedure Code, it appears clear that the Magistrate can only proceed with the hearing of the case in the sense to record the evidence of the complainant not only after the accused is present before the Court but his plea is recorded in respect of the allegations levelled against him in the case. It is then that he has to consider as to whether the absence of the complainant justifies the Court to pass an order of acquittal of the accused u/s 247 of the Criminal Procedure Code. Now section 247 runs thus:--

If the summons has been issued on complaint and upon 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 reason he thinks proper to adjourn the hearing of the case to some other day:

Provided that 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.

The first part of this section does give power to the Magistrate to acquit the accused, if the complainant does not appear on the date of hearing of such a case, but that order can be passed if the learned Magistrate does not think it proper to adjourn to some other date for some reason and therefore he has to exercise his discretion of acquitting the accused if he finds no reason to adjourn the case. The discretion has to be exercised in a judicious manner and not in a manner as to cause miscarriage of justice. It has to be realised at that time that the effect of any such order of acquittal u/s 247 of the Criminal Procedure Code, is a bar to any subsequent complaint on the same facts, having regard to section 403 of the Criminal Procedure Code. The learned Magistrate could have seen that in no case, the hearing of the complainant''s evidence was likely to proceed as the presence of the accused was not secured. He was thus not before the Court. It was only after his plea was recorded that the complainant had to lead evidence in the case. In those circumstances, it was essential to adjourn the case suo motu to some other date and not hasten to pass such an order in the case. Even the proviso to section 247 of the Code further gives wide discretion to dispense with the personal attendance of the complainant if he thinks or is of opinion that it was not so necessary. This was, therefore, a fit case, where he could have dispensed with his presence on the ground that the accused was not before the Court. The learned Magistrate has not, therefore, applied his mind to the provisions and if they were properly considered, I feel no doubt that he would have refrained from passing such an order on the complainant''s absence on that day in Court. This has clearly resulted in miscarriage of justice and the order is, therefore, liable to be set aside. The case shall therefore be sent back to the learned Magistrate for proceeding further in accordance with law.

Examining the facts of the case in the light of the above decision, the record reveals that the accused has never remained present before the court after the issuance of summons. Under the circumstances, the plea of the accused has not been recorded u/s 251 of the Code. As held by this court in the above referred decision, the Magistrate can only proceed with the hearing of the case, viz., to record the evidence of the complainant, not only after the accused is present before the court, but after his plea is recorded in respect of the allegations levelled against him in the case. It is then that he has to consider as to whether the absence of the complainant justifies the court to pass an order of acquittal of the accused u/s 256 of the Code of Criminal Procedure, 1973. The above decision would apply on all fours to the facts of the present case. From the facts noted hereinabove, it is clear that the accused had not appeared before the court pursuant to the summons issued to him, consequently his plea had not been recorded. In the aforesaid premises, the learned Magistrate ought to have seen that in no case, the hearing of the complainant''s evidence was likely to proceed as the presence of the accused was not secured. It is only after his plea was recorded that the complainant has to lead evidence in the case. In such circumstances, it was essential to adjourn the case suo motu to some other date and not hasten to pass such an order in this case.

As held by this court in the above referred decision, even the proviso to section 247 of the Code (section 256 of the Code of 1973) further gives wide discretion to dispense with the personal attendance of the complainant, if he thinks or is of the opinion that it was not so necessary. This is, therefore, a fit case, where the learned Magistrate could have dispensed with his presence on the ground that the accused was not before the court. It appears that the learned Magistrate has not applied his mind to the provisions of the Code in the light of the factual situation, else he would have refrained from passing such an order on the complainant''s absence on that day in the court. This has clearly resulted in miscarriage of justice, which renders the impugned order unsustainable. For the foregoing reasons, the appeal succeeds and is, accordingly, allowed. The impugned order dated 9.9.2010 passed by the learned Metropolitan Magistrate, Negotiable Instruments Act, Court No. 6, Ahmedabad, is hereby quashed and set aside. The complaint is restored to file. The trial shall proceed further from the stage at which it was pending when the impugned order came to be passed and shall conclude the trial as expeditiously as possible.