In the instant case, we notice that there is a specific
averment in the Special Leave Petition(s) that the appellant had
led its evidence in the case and thereafter had moved an
application under Section 311 of the Code to summon and
examine further witnesses. In Paragraph 5(u), it is stated that
the trial court as well as the High Court did not take into
consideration that the complainant’s cross-examination had been
over in Complaint Case Nos.621742/16, 621743/16 and
621744/16, and no cross-examination was sought in other cases.
Rather, CW-1’s cross-examination in the above three complaint
cases was adopted. There appears no specific denial of the
aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after
dispensing with the attendance of the complainant. Further, if the complainant had not appeared to press the application under Section 311 of the Code, the learned Magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence. We are, therefore, of the considered view that the learned Magistrate was not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere nonappearance
of the complainant. The High Court too failed to take notice of the aforesaid aspects. Thus, the orders impugned are liable to be set aside. {Para 13}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 657-664 OF 2023
M/s. BLS INFRASTRUCTURE LIMITED Vs M/s. RAJWANT SINGH & OTHERS
Author: MANOJ MISRA, J.
Dated: March 01, 2023
1. Leave granted.
2. These appeals by way of special leave petitions are directed
against the judgment and order dated 07.11.2019 passed by
Delhi High Court dismissing Crl.L.P. Nos.315 to 322 of 2019 filed
by the appellant against the order of Metropolitan Magistrate-04
(N.I. Act)/South East, Saket Courts, New Delhi (for short “learned
Magistrate”) dated 25.01.2019 dismissing Criminal Complaints
No.621744/16, 1718/16, 1276/16, 1277/16, 621743/16,
621742/16, 12742/17 and 12744/17 for non-appearance of the
complainant (the appellant herein).
3. The short question that arises for our consideration in
these appeals is whether in the facts of the case, the learned
Magistrate was justified in dismissing the criminal complaints for
non-appearance of the complainant even though the statement of
the complainant had been recorded and, vide order of the learned
Magistrate dated 26.10.2017, the complainant’s evidence was
closed with a direction to list the matter for recording of defence
evidence as also for consideration of application under Section
311 of the Code of Criminal Procedure, 1973 (for short “the
Code”) filed by the complainant.
4. To appropriately address the aforesaid issue, it would be
apposite to give a brief sketch of the facts giving rise to these
appeals.
5. The appellant in all filed eight complaints against the
respondents under Section 138 of the Negotiable Instruments
Act, 1881. Three complaints were filed in the year 2011, three in
the year 2013 and remaining two in the year 2017. Out of the
aforesaid eight complaints, in Complaint Case Nos.621742/16,
621743/16 and 621744/16 the complainant was subjected to
cross-examination. On 26.10.2017, the learned counsel for the
accused made a statement before the learned Magistrate that the
cross-examination of CW-1 (the complainant), as made in the
above three cases, shall be adopted in the remaining complaints.
On basis of the above statement, the complainant’s evidence was
closed and the cases were directed to be listed for recording of
defence evidence. At that stage, an application was filed by the
complainant under Section 311 of the Code for summoning
certain witnesses. While the matter was pending at that stage,
according to the appellant, appellant’s counsel misled the
appellant into a belief that appellant’s presence is not required as
a settlement was being negotiated. It is the case of the appellant
that in these circumstances, the appellant did not appear and
ultimately the complaints were dismissed for non-appearance
vide order dated 25.01.2019.
6. The order dismissing the complaints for non-prosecution
was subjected to challenge before the Delhi High Court through
eight separate petitions which came to be dismissed by a common
order dated 07.11.2019 impugned in these appeals.
7. We have heard Shri Maninder Singh, learned Senior
Advocate appearing for the appellant; and Mr. Samrat Nigam,
learned Advocate for the respondents.
8. The learned counsel for the appellant submitted that the
learned Magistrate while dismissing the complaints for non prosecution
lost sight of the proviso to sub-section (1) of Section
256 of the Code. It is submitted that the said proviso enables the
Magistrate to dispense with the attendance of the complainant
and proceed with the case where the complainant is represented
by a pleader or by the officer conducting the prosecution or where
the Magistrate is of the opinion that the personal attendance of
the complainant is not necessary.
It is submitted that as the statement of the complainant
had been recorded and the complainant was also subjected to
cross-examination, there existed admissible evidence on record in
support of the complaint case. In these circumstances, even if the
complainant was absent, the learned Magistrate could have
proceeded to decide the case on merits. Thus, the order of the
learned Magistrate stands vitiated for having failed to notice that
there existed evidence on record enabling the matter to proceed
even in absence of the complainant under the proviso to subsection
(1) of Section 256 of the Code. It is urged that the High
Court also failed to notice the aforesaid aspect; consequently, the
order(s) of the High Court as well as of the learned Magistrate are
liable to be set-aside and the matter be restored to the stage at
which the learned Magistrate had dismissed the complaint.
In support of his submissions, the learned counsel for the
appellant placed reliance on the decisions of this Court in
Associated Cement Co. Ltd. v. Keshvanand1; S. Anand v.
Vasumathi Chandrasekar2; and, S. Rama Krishna v. S. Rami
Reddy (Dead) By His LRs & Others3.
9. Per contra, the learned counsel for the respondent(s)
submitted that sub-section (1) of Section 256 of the Code
mandates the Magistrate to acquit the accused if, 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. It is submitted that since it is not
in dispute that the complainant had filed an application under
section 311 of the Code and the complainant remained absent
from the proceedings, the learned Magistrate was justified in
dismissing the complaint(s) for non-appearance of the
complainant. It has also been urged that if there is any technical
defect in dismissing the complaint(s) for non-appearance of the
1 (1998) 1 SCC 687
2 (2008) 4 SCC 67
3 (2008) 5 SCC 535
6
complainant, the same be treated as an order of acquittal as per
provisions of sub-section (1) of Section 256 of the Code.
10. Having noticed the rival submissions, before we proceed
further, it would be useful to notice the provisions of Section 256
of the Code, which are reproduced below:
“256. Non-appearance or death of complainant.—(1) 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 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.”
A plain reading of the proviso to sub-section (1) of Section
256 would indicate that where the Magistrate is satisfied that the
personal attendance of the complainant is not necessary, he can
dispense with the attendance of the complainant and proceed
with the case. Such a situation may arise where
complainant’s/prosecution’s evidence has been recorded and to
decide the case on merits, complainant’s presence is not
necessary.
7
11. In the case of S. Anand (supra), addressing a situation
where the complainant was absent but had already examined his
witnesses, this Court observed as follows:
“12. Section 256 of the Code provides for disposal of a
complaint in default. It entails in acquittal. But, the question which
arises for consideration is as to whether the said provision could
have been resorted to in the facts of the case as the witnesses on
behalf of the complainant have already been examined.
13. The date was fixed for examining the defence witnesses.
The appellant could have examined witnesses, if he wanted to do
the same. In that case, the appearance of the complainant was not
necessary. It was for her to cross-examine the witnesses examined
on behalf of the defence.”
After observing as above, in paragraph 15, it was held thus:
“15. … when the prosecution has closed its case and the
accused has been examined under Section 311 of the Code of
Criminal Procedure, the Court was required to pass a judgment on
merit of the matter.”
12. In Associated Cement Co. Ltd. (supra), the purpose of
inserting a provision like Section 256 of the Code was discussed
and in light thereof, in paragraph 16, it was observed as under:
“16. What was the purpose of including a provision like Section
247 in the old Code (or Section 256 in the new Code). It affords
some deterrence against dilatory tactics on the part of a
complainant who set the law in motion through his complaint. An
accused who is per force to attend the court on all posting days
can be put to much harassment by a complainant if he does not
turn up to the court on occasions when his presence is necessary.
The section, therefore, affords protection to an accused against
such tactics of the complainant. But that does not mean if the
complainant is absent, the court has a duty to acquit the accused
in invitum.”
8
After observing as above, it was held that where the
complainant had already been examined as a witness in the case,
it would not be appropriate for the Court to pass an order of
acquittal merely on non-appearance of the complainant. Thus,
the order of acquittal was set-aside and it was directed that the
prosecution would proceed from the stage where it reached before
the order of acquittal was passed.
13. In the instant case, we notice that there is a specific
averment in the Special Leave Petition(s) that the appellant had
led its evidence in the case and thereafter had moved an
application under Section 311 of the Code to summon and
examine further witnesses. In Paragraph 5(u), it is stated that
the trial court as well as the High Court did not take into
consideration that the complainant’s cross-examination had been
over in Complaint Case Nos.621742/16, 621743/16 and
621744/16, and no cross-examination was sought in other cases.
Rather, CW-1’s cross-examination in the above three complaint
cases was adopted. There appears no specific denial of the
aforesaid factual position. However, we find that neither the High
Court nor the learned Magistrate has taken notice of the aforesaid
position. Both the courts below thus failed to consider whether
in the facts of the case under the proviso to sub-section (1) of
Section 256, the court could proceed with the matter after
dispensing with the attendance of the complainant.
Further, if the complainant had not appeared to press the
application under Section 311 of the Code, the learned Magistrate
could have rejected the application under Section 311 of the Code
and proceeded with the case on basis of the available evidence.
We are, therefore, of the considered view that the learned
Magistrate was not justified in straight away dismissing the
complaint(s) and ordering acquittal of the accused on mere nonappearance
of the complainant. The High Court too failed to take
notice of the aforesaid aspects. Thus, the orders impugned are
liable to be set aside.
14. For the reasons above, the order(s) of the High Court as
well as of the learned Magistrate are set-aside. The proceedings
shall stand restored to their original number(s) on the file of the
learned Magistrate and the prosecution shall now proceed from
the stage where it was when the order of acquittal/dismissal of
the complaint(s) was passed.
15. The appeals are allowed in the aforesaid terms.
......................................J.
(Sudhanshu Dhulia)
......................................J.
(Manoj Misra)
New Delhi;
March 01, 2023
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