ASSAM ASBESTORS LTD. Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE appellant was the complainant before the learned Metropolitan Magistrate, 10th Court Calcutta in case No. C/1576 of 1997 under section 138/141 of the N.I. Act. The learned Magistrate was proceeding with the trial of the case. The prosecution evidence was closed and the accused was examined under section 313 Cr. PC on 20.8.04. The stage was reached for examination of defence witness and indeed D-.W.1 Sujit Kr. Ghosh was examination-in-chief on 17.1.05. The deposition sheet of the said defence witness does not show that examination-in-chief was completed because on 17.1.05 further examination-in-chief was deferred on the prayer of the defence. Be that as it may, no further development of the trial did take place and survey of the orders passed by the learned Magistrate from time to time would reveal that the next date was 30.3.05 when the accused filed a petition praying for admission in evidence of xerox copy of certain documents. The learned Magistrate then fixed 8.6.05 for hearing of the said petition. Then on 8.6.05 on the prayer of the defence adjournment was allowed for hearing of the said petition. The next date was fixed on 22.8.05. The order dated 22.8.05 does not reveal what happened to the fate of that petition and the learned Magistrate adjourned the hearing to 11.11.05 for defence evidence. On 11.11.05, the complainant was absent on call and he was asked show cause by 12.11.05. On 3.3.06 show-cause accepted. Then, the next date fixed was 28.4.06. On that date, the learned Magistrate-in-charge adjourned the trial as the regular presiding officer was on leave. On 12.5.06 on the prayer of the defence, trial was adjourned to 19.6.06. On that date the complainant was present but on the prayer of the defence trial was adjourned and furthermore the Court was suffering from load-shedding. Then on 17.7.06, the complainant was present but accused was absent by petition and time was prayed for the learned Magistrate adjourned till 8.8.06 for argument. There was no record as to whether D. W.1 would be further examined or his evidence stood closed. In this way time passed by. On 19.9.06 which was an adjourned date, no argument was heard and on the prayer of the defence, the matter was adjourned. Now it appears that on that date the defence filed a petition but what was that petition about is not disclosed in the order dated 19.9.06. On 6.11.06 again the matter was adjourned only for the purpose of hearing of a defence petition. Now from the order dated 6.11.06 it came to be revealed that the said petition was a reproduction of an earlier petition whereby xerox copy of a certain document was prayed for being admitted in evidence. The said petition was not heard from day-to-day and it was heard only on 7.9.07 when the petitioner of the defence was rejected. Then the learned Magistrate fixed 14.11.07 for completion of evidence of D. W. 1 but on 14.11.07 the matter was adjourned as no time was available with the learned Magistrate. On 30.1.08 the complainant was absent without steps and examination of D.W.1 was adjourned to 4,3.08. On 4.3.08. local Bar did not participate in the Court's business. Then on 16.4.08 as the complainant was absent, the learned Magistrate dismissed the complaint petition under section 256 Cr. PC and acquitted the accused.

(2.) IN the factual scenario as above, this appeal has been filed to challenge magisterial order of acquittal dated 16.4.08 on the ground that the learned Magistrate committed illegality in dismissing the complaint only for the non-appearance of the complainant on the day and the learned Magistrate ought not to have passed the order.

(3.) MR . Ayan Bhaitacharjee, learned Advocate for the appellant submitted that absence of the complainant on 16.4.08 was purely unintentional and even if the complainant was absent, the learned Magistrate could have proceeded with the hearing of the case on merit but acquittal under section 256 Cr. PC was unwarranted. It is further submitted that if the orders passed by the learned Magistrate from time to time are examined it would reveal that the respondent also secured number of adjournment on different pretexts from lime to time and long time was consumed by the learned Magistrate only for the purpose of disposal of a petition of the defence whereby the copy of certain document was prayed to be admitted in evidence. Therefore, it is submitted that the order impugned may be set aside.