RAJENDRA PRASAD BAJORIA Vs. SWAPAN MUKHERJEE

JUDGEMENT

(1.) This appeal by special leave under section 378 (4) of the Criminal Procedure Code (for short referred to as the Cr. P. C.) is against an order dated March 3, 2011 passed by the learned Metropolitan Magistrate, 6th Court, Calcutta in Case No.C/781 of 2004 arising out of a complaint under Section 138 of the Negotiable Instruments Act, 1881 whereby the learned trial Court acquitted the accused (the respondent herein) under Section 256 (1) of the Criminal Procedure Code by the following order:-

(2.) Learned counsel appearing for the appellant submits that it is a case under Section 138 of the Negotiable Instruments Act where the accused has been acquitted without considering the evidence on record. It is pointed out that the complainant has adduced evidence and several documents have been exhibited but the learned Magistrate, without looking into such evidence, acquitted the accused for non-appearance of the complainant. In such circumstances the learned Magistrate was not justified in taking recourse to the provision of section 256 (1) Cr. P. C. To fortify his submission learned counsel for the appellant placed reliance upon the decision reported in the case of S. Anand versus Vasumathi Chandrasekar, 2008 AIR(SC) 1296. Reference has also been made to a decision of Madhya Pradesh High Court in the case of Right Services, Ratlam versus Chhotu Bhaiya Road Lines and another, 2004 CrLJ 406 and a judgement of Bombay High Court reported in the case of Terna Shetkari Sahakari Sakhar Karkhana Ltd. Osmanabad versus Anant Laxman Ghogre & Anr, 2011 CrLJ 3555.

(3.) Learned counsel for the respondent countered that the order impugned is perfectly justified in view of the fact that several opportunities were given to the complainant to appear for further cross-examination but to no avail. Referring to sub-section (2) and (3) of Section 143 of the Negotiable Instruments Act, learned counsel for the respondent sought to impress that the trial of a case under Section 138 of the Act should be continued from day to day till its conclusion within six months from the date of filing of the complaint but in the present case several dates elapsed for further crossexamination of the complainant who chose not to appear in court on the dates fixed. Relying upon the decision reported in the case of S. Rama Krishna versus S. Rami Reddy (dead) by his LRS and Others, 2008 2 SCC(Cri) 645 learned counsel for the respondent submits that the discretion exercised by the trial Court under Section 256 (1) of the Criminal Procedure Code cannot be interfered with in such a case where it appears that the complainant was not interested in getting the matter prosecuted. On the point of interpretation of a provision of an Act, reference has been made to a decision reported in (Supreme Court) in the case of Kunal Kumar Tiwari @ Kunal Kumar versus State of Bihar and Another,2017 4 AICLR 602.