CHANDRAVEER SINGH Vs. STATE OF UTTARANCHAL AND ANOTHER

JUDGEMENT

(1.) HEARD Mr. Vinod Sharma, Advocate for the appellant, Mr. G.S. Sandhu, Government Advocate for the State of Uttarakhand and Mr. Nagesh Agarwal, Advocate for respondent no. 2.

(2.) THIS appeal has been filed by the appellant against acquittal of respondent no. 2. Brief facts of the case are that the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. Thereafter the learned Magistrate after recording the statement of the accused under Section 281 of the Cr.P.C. fixed the date for summoning the accused on 6.10.2004, thereafter on 21.6.2005 the matter was adjourned for 27.7.2005 and the matter was fixed again for statement of the accused on 30.7.2005. On 30.7.2005, when the case was called out none was present and the matter was adjourned for 18.8.2005 for recording the statement of the accused. On 18.8.2005 the case was called out, the complainant was not present though the accused was present. The case, however, was dismissed in absence of the complainant. The order sheet dated 8.9.2005 reads as follows: -

(3.) LEARNED counsel for the appellant relied upon two decisions of the Hon'ble Apex Court in the case of S. Anand Vs. Vasumath Chandrasekar reported in, AIR 2008 SCW 1346 and Associated Cement Co. Ltd. Vs. Keshvanand reported in, 1998 AIR SCW 192 wherein it has been held that in case on the particular date the complainant is not present, the matter should not be ordinarily dismissed in absence of complainant if the proceeding can go on in absence of the complainant. In the present case, on the date when the case was dismissed it was listed for recording the statement of the accused. The order sheets shows that the accused was present on the said date. The proper course for court below was to proceed with the matter and record the statement of the accused for which the case was listed. The presence of the complainant or his counsel is actually not required and the statement could not have been recorded in absence of the complainant. Learned counsel for respondent no. 2 has stated that normally an order of acquittal is not to be interfered with as there is a very limited ground for interference in the acquittal case. The counsel for respondent no. 2 has relied upon certain rulings in his favour, however, this will not help the case of respondent no. 2 for the simple reason that we are not dealing with the order of acquittal where the order of acquittal has been passed on merits. Here the learned Magistrate has dismissed the complaint of the complainant on the non appearance of the complainant exercising his power under Section 256 of the Cr.P.C. without going into the merits of the case. Although such an order is deemed to be acquittal of the accused, admittedly the order is not passed on merits but in absence of the complainant.