M/S. ONE TEXTILE Vs. UMESH BHARECH

JUDGEMENT

(1.) The appellant, a proprietorship firm filed a complaint under Sec. 138 of the Negotiable Instrument Act. The said complaint was registered as Case No.C-79 of 2010 in the court of learned Chief Metropolitian Magistrate, Calcutta. The case was subsequently transferred to the 3rd Court of the Metropolitan Magistrate, Kolkata for trial and disposal. It appears from the lower court record that on 20/7/2017, the accused was examined under Sec. 251 of the Code of Criminal Procedure. Substance of acquisition under Sec. 138 of the Negotiable Instrument Act was stated and explained to him. He pleaded not guilty. Accordingly the case was fixed for trial. Next date for recording evidence was fixed on 30/10/2017. On that date the complainant was present; the accused was represented under Sec. 205 of the Code of Criminal Procedure by his learned Advocate; however, trial of the case did not commence and the learned Magistrate suo moto adjourned the hearing of the case fixing 13/3/2018 for evidence. On 13/3/2018 the complainant was absent without any step. Therefore, the learned Magistrate directed him to file show cause as to why the case shall not be dismissed for non-prosecution fixing 10/4/2018 for filing show cause by the complainant. On 10/4/2018 the complainant was again absent without any step. Therefore, the learned Metropolitan Magistrate, 3rd Court, Kolkata acquitted the accused under Sec. 256 of the Code of Criminal Procedure. The instant appeal is filed by the complainant of the aforesaid case assailing the order of acquittal passed in favour of the respondent by the court below on 10/4/2018.

(2.) Learned Advocate for the appellant submits at the outset that in a summons case, the court can pass an order of acquittal under Sec. 256 of the Code due to non appearance of the complainant. However, the said order is not automatic. An order under Sec. 256 of the Code cannot be passed on mere absence of the complainant. The learned Magistrate is under obligation to exercise such power judicially and fairly without impairing the cause of administration of criminal justice. Such power cannot be invoked, unless the court finds for some good reasons, it would not be proper to adjourn the hearing of the case to some other date. In other words, before taking recourse to the provision of Sec. 256 of the Code, the court has to come to a conclusion that there is no justifiable reason to adjourn the hearing of the case. Therefore, even when the complainant is absent the court before exercising its discretion under Sec. 256 of the Code has to record that there is no good reason for which it would be proper to adjourn the hearing of the case to some other date. The learned Advocate for the appellant next takes me to the impugned order. The relevant portion of the order runs thus:-

(3.) According to the learned Advocate for the appellant the learned Magistrate did not exercise his judicial discretion and mechanically passed the order. It is true that on 13/3/2018 and 10/4/2018, the complainant was absent but he failed to consider that the complainant was present to adduce evidence on 27/11/2013, 19/11/2014, 3/6/2014, 1/8/2014, 1/12/2014, 19/11/2015, 22/9/2015, 22/12/2015, 20/4/2017 and 30/10/2017. The record shows that the complainant was diligent in proceeding with the case, but his evidence was not recorded due to one reason or the other. According to the learned Advocate for the appellant, before acquitting the accused under Sec. 256(1) of the Cr.P.C, the learned Magistrate did not even consider the previous conduct of the appellant. Therefore, the learned Magistrate was wrong in acquitting the accused under Sec. 256 of the Code of Criminal Procedure. In support of his contention he refers to a decision of this court in Bijay Kumar Bhattar vs. Trimurti Assoicates Pvt. Ltd and Anr. reported in 2010(1) CHN (Cal) 108. On the selfsame point he also refers to anther decision of this court in Shri G. Sekhar vs Smt. K. Prasanna Jyoti Rao and Another reported in (2017) 3 Cri.LR (Cal) 524.