Raman Gupta vs Satish Kumar Gupta

The instant Criminal Acquittal Appeal has been preferred by the appellant against the order dated 31.07.2007 passed by the learned Sub Judge (Spl. Railway Magistrate), Jammu in case titled Raman Gupta Vs. Satish Kumar Gupta by virtue of which the complaint filed by the appellant under Section 138 Negotiable Instrument Act has been dismissed in default on the following grounds:

a) That the court below failed to appreciate that the complainant was exempted from personal appearance and at no point of time his exemption was cancelled and he was directed to appear in person. Once the complainant was exempted from personal appearance, the complaint cannot be dismissed on account of his absence in the court. Under the provisions of 247 of Cr.P.C if the complainant does not appear then the Magistrate notwithstanding anything herein before contained acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to some other day. In the present case even the accused was not present when the complaint was dismissed the accused is not discharge of bail bonds inasmuch as the Magistrate has not passed a speaking order a quitting the accused. A bare perusal of the order will reveal that it has been passed in a mechanical manner, without application of mind and without going through the record. The order impugned has resulted into failure of justice as such required to be set aside.

b) That the order impugned is also bad in law and required to be set aside on the ground that under the provisions of law once the accused appeared before the court in response to the process issued he is either to be acquitted or convicted. In the present case there is no order of acquittal of the accused. It is a simple order of dismissal of the complaint for the non presence of the complainant when the fact remains that the complainant was examined their personal appearance and his exemption is not cancelled subsequent thereto till the final disposal of the complaint by the order impugned. The order impugned has been passed without considering this fact and the provisions of law. Under the provisions of section 247 Cr.P.C it was a fit case in which in the absence of the complainant, the Magistrate should have adjourned the case for some other day or cancel the exemption or direct the counsel for the complainant to secure the presence of the complainant. The order impugned is prima facie bad and required to be set aside.

c) That the order impugned is also bad in law and required to be quashed on the ground that the appropriate order which the magistrate could have passed was to issue warrants to secure the presence of the accused who was not present despite furnishing on bail bonds and surety. Even on the earlier dates the accused was not present whereas a date earlier to the date on which the complaint was dismissed the complainant was present in the court.

This Court on 29.11.2018 posted the matter for maintainability of the instant appeal; the court was of the view that revision would be maintainable.

I have considered this aspect of the matter.

Complaint under section 138 of N.I Act is summon trial; Chapter XX of Cr.P.C. deals with trial of summon case; its Section 247 Cr.P.C. reads as under:-

"Section 247- Non- appearance of complainant.

If the summons 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 reason he thinks it 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."

From bare perusal of this section, it is evident that where the complainant is absent on the date of hearing the Magistrate may either (i) acquit the accused, or (ii) adjourn the case for some future date; or (iii) dispense with the attendance of the complainant and proceed with the case. The Magistrate has the discretion to choose any of these three alternatives applying his judicial mind. Its proviso also provide that magistrate may proceed with the case further keeping aside the absence of the accused due to his non-appearance, where he finds it necessary to do so in the interest of justice. Section 256 of Central Cr.P.C is pari materia to section 247 of State code.

Section 417(2) Cr.P.C. reads as under:-

"417. Appeal in case of acquittal.- (1) Subject to the provisions of sub-section (4), the Government may, in any case, direct the Public Prosecutor to present an appeal to,-

.............

(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grant special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."

From perusal of this provision, it is evident that in case of order of acquittal passed in a complaint case, High Court may grant special leave to appeal from the order of acquittal on the application made by the complainant. After granting leave to file appeal, complainant has a right to file acquittal appeal before High Court.

Section 438(2) & Section 439 (2) to (5) Cr.P.C. read as under:-

"438. Sessions Judge's powers of revision.-(1)...............

(2) Where any proceeding by way of revision is commended before a Sessions Judge under sub-section (1), the provisions of sub-sections

(2), (3), (4) and (5) of Section 439 shall, so far as may be, apply to such proceedings and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge."

"439.High Court's powers of revision.-(1) ..........

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Judicial Magistrate of the first class.

(4) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction.

(5) Where under this Code an appeal lies and no appeal is brought no proceedings by way of revision shall be entertained at the instance of the party who could have appealed."

On conjoint reading of these sections, it is evident that, where under this code an appeal lies and no appeal is brought by the aggrieved party, no proceeding by way of revision shall be entertained.

In 2002 CRI.L.J. 4741, case titled Him Advances and Savings Pvt. Ltd. vs. Ravinder Kumar Gupta; 2003 Cr.L.J 2750 case tiled H.P Financial Corporation v Continental Spinners Ltd.; 2003 Cr.l.J 149 case titled Krishan Kumar v. Mohamand Jaros; and 2006 and Cr.L.J 601 case titled Om Gayatri Vs. State, it has been held that once a complaint u/s 138 of N.I. Act is dismissed due to non appearance of complainant in terms of section 265 (Central code), accused is deemed to be acquitted; then only remedy available to complainant is to file acquittal appeal and revision would not be maintainable.

So it is clear that once a complaint under Section 138 of the Negotiable Instrument Act has been dismissed in default in terms of Section 247 of the Cr.P.C. the only remedy available with the complainant is to file acquittal appeal.

Now coming to merit of impugned order. It is apt to reproduce the impugned order as under:

"31.07.2007:-Complainant is not present. It is evident from the interim orders that the complainant never caused appearance after the transfer of this complainant to this court from the court of learned City Judge, Jammu. It shows that the complainant is not interested in continuation of the present complainant under Section 138 Negotiable Instrument Act is summon case. Same is compoundable.

Considering all the aforesaid into consideration, present complaint is hereby dismissed. File shall go to records after its due compilation."

From bare perusal of the order impugned, it is evident that the court below has dismissed the complaint in default of appearance of the complainant. From perusal of the contents of the appeal, it reveals that the complainant issued a Cheque in favour of the appellant for an amount of Rs.1,70,000/- on 06.03.2003 drawn on the Citizen's Cooperative Bank Jammu being Cheque No.056862; that when the Cheque was presented by the appellant on 12.03.2003 in his bank, it was dishonored on account of insufficient funds in the account. Thereafter, the appellant issued a demand notice to the respondent, but despite receipt of notice, he failed to make payment. The appellant thereafter filed a complaint under Section 138 Negotiable Instrument Act before the learned Chief Judicial Magistrate, Jammu which was subsequently transferred to the court of City Judge, Jammu, the respondent appeared there but thereafter the complaint was transferred to the Railway Magistrate, Jammu. It is further case of the appellant that when the complaint was pending before the learned City Judge, Jammu; he filed an application for his exemption from the personal appearance. The leaned City Judge, vide its order dated 22.10.2003 allowed the application and exempted the appellant from the court proceedings himself, thereafter, the case was adjourned from time to time and ultimately on 31.07.2007, the learned Sub Judge (Special Railway Magistrate), Jammu has dismissed the complaint in default.

The appellant/complainant was exempted from the court proceedings on 22.10.2003, which is evident from the certified copy of the court order; therefore, he was not suppose to appear in the court and only his Advocate was to appear. Even otherwise by virtue of the impugned order, the court below dismissed the complaint in default, when even accused was also not present. The case was thus not fixed for hearing. It is also a fact that case was transferred from city judge to Railway Court (JMIC), so as per judicial propriety; the court should have issued notice to complainant, if his presence was required because he was already exempted by way of court order on 22.10.2003.

In view of above discussion, the Magistrate should not have acquitted the respondent under Section 247 of the Code; hence this appeal is allowed and impugned order of acquittal is set aside; Trial court is directed to proceed with trial; Already much time has elapsed, so trial court shall decide the complaint preferably within six months from date of receipt of order. Take notice that trial court shall issue notices to both parties at first instance.