IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1435 OF 2007 Manohar Pamandas Jani .. Applicant Versus Basheer M. Nadaf & Anr. .. Respondents Smt.Sunanda Kumbhat for the applicant. Mr.R.S.Alange for respondent No.1. Ms.A.T.Jhaveri, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 25th March 2009. : 25th March 2009. : 25th March 2009. ORAL JUDGMENT: . Heard the learned counsel appearing for the applicant and the learned counsel appearing for the 1st respondent. Leave is granted. Appeal is admitted. Taken up for final disposal at admission stage. The applicant filed a complaint before the learned Magistrate alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. 2. By the impugned judgment and order, the learned Magistrate acquitted the respondent. In the impugned order dated 15th January 2007 the learned Judge observed that the complaint was adjourned from time to time for cross-examination of the complainant. Even costs was (2) imposed on the accused. Thereafter, the applicant had chosen to remain absent. The learned Judge observed that though affidavit in lieu of examination-in-chief was filed alongwith the original documents such as cheques, office copy of notice and returned envelopes, in absence of any oral evidence, 1st respondent was required to be acquitted. 3. The learned counsel appearing for the applicant has taken me through a true copy of the roznama of the case. Her submission is that there was no negligence on the part of the applicant and in fact the complaint was delayed due to the 1st respondent repeatedly seeking adjournments. She invited my attention to the application at Exhibit 24 made by the 1st respondent. She submitted that the said application itself shows that the 1st respondent intended to challenge the order by which he was directed to pay costs. Her submission is that without hearing the applicant the learned Judge waived the order of costs and kept the complaint for hearing on 09th January 2007. She submitted that on 09th January 2007 as the applicant was absent, case was adjourned to 15th January 2007 when the impugned judgment was delivered. Her submission is that except the last two dates, the applicant has attended on all (3) other dates. The learned counsel appearing for the 1st respondent submitted that the learned Magistrate was justified in passing the order as the applicant was continuously absent. He submitted that the learned Magistrate had no reason to prolong the complaint and when he found that the applicant had not offered himself for cross-examination, he was justified in passing the impugned order. He has placed reliance on decision of this Court in the case of Sonam Finance Lease Co. Pvt.Ltd v. Vasantsingh Shankar Narayansingh & Anr (2008 (2) Bom.C.R.(Cri.) 315). He also placed reliance on another decision of this Court in the case of M/s.Merchant alias Somji Agro Industries and Investment (P) Ltd v. Brij Mehra and another (2004 Criminal Law Journal 1012). He also placed reliance on a decision of the Apex Court in the case of S. Rama Krishna v. S. Rami Reddy (Dead) By His Legal Representatives and others [(2008) 5 Supreme Court Cases 535]. He submitted that the view taken by the learned Judge is certainly a possible view and therefore no interference can be made in an appeal against acquittal. He submitted that in view of the law laid down by the Apex Court no interference is called for. 4. I have carefully considered the submissions. It (4) will be necessary to refer to the decision of the Apex Court in the case of S. Rama Krishna (supra). The Apex Court dealt with the power under sub-section 1 of section 256 of the Code of Criminal Procedure, 1973 (hereianfter referred to as the said Code) vested in the Magistrate. In paragraph 13, the Apex Court has held thus: "13. The provisions of section 256(1) mandate the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out. The The The discretion discretion discretion conferred upon the learned conferred upon the learned conferred upon the learned Magistrate, Magistrate, Magistrate, however, must be exercised with however, must be exercised with however, must be exercised with great great great care and caution. care and caution. care and caution. The conduct of the complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period. The appellant had been attending the court for a long time, except on some dates where when (sic) remained absent or was otherwise represented by his advocate. He had to remain present in Court. He attended the court on not less than 20 occasions after the death of the original (5) complainant. If in the aforementioned situation, the learned Magistrate exercised his discretionary jurisdiction, the same, in our opinion, should not have been ordinarily interfered with." (Emphasis added) In paragraph 15 the Apex Court has observed thus: "15. The High Court itself had come to the finding that the respondents were not interested in getting the matter prosecuted. Despite the same, it allowed their appeal, opining that any lis between the parties should be decided on merits rather than on technicalities. On what basis such a statement of law was made is not known. No precedent was cited; no reason has been assigned. The High Court failed to take into consideration the fact that it was dealing with an order of acquittal and, thus, the principle of law which was required to be applied was that, if two views are possible, a judgment of acquittal should not ordinarily be interfered with." (6) 5. The Apex Court held that the discretionary power under sub-section 1 of section 256 has to be exercised with great care and caution and if such power is exercised, and if it is shown that two views are possible no interference can be made in an appeal against acquittal. 6. As far as judgment in case of M/s.Merchant @ Somji Agro Industries and Investment (P) Ltd (supra) is concerned, this was a case where the complainant and his councel remained absent on three consecutive occasions. Even in the case of Sonam Finance Lease Co Pvt Ltd (supra), the Court has observed that the complainant was absent on number of occasions and adjournments were sought. 7. The Apex court in the case of S. Rama Krishna (supra) has held that the conduct of the complainant is of immense significance while exercising the discretion under sub-section 1 of section 256 of the said Code. 8. In the light of the law laid down by the Apex Court, the facts of this case are required to be (7) appreciated. The perusal of the roznama shows that on 13th June 2006 the complaint was adjourned to 03rd July 2006 for recording the plea of the accused. On 03rd July 2006, the plea was recorded. The case was adjourned to 24th July 2006. On that day, an application for exemption was made by the accused and the case was adjourned to 05th August 2006. The roznama dated 05th August 2006, 19th August 2006, 04th September 2006, 27th September 2006 does not record the absence of the applicant. The roznama does not disclose that the case could not proceed because of any default on the part of the applicant. On 13th November 2006, affidavit in lieu of evidence was filed by the applicant. On next date i.e 05th December 2006 the complainant was present. However, an application was made by the accused. The case was adjourned to 13th December 2006. On that day, the applicant was present but accused was absent. An application was made on behalf of the accused for exemption which was granted subject to costs of Rs.2000/-. The case was adjourned to 19th December 2006. It appears that on that day accused engaged services of a new advocate who filed vakalatnama. However, the amount of costs was not paid. The case was adjourned to 20th December 2006. On that day an application was moved at Exhibit 24 by the accused. It (8) must be borne in mind that by 20th December 2006, amount of costs was not paid by the accused. On that day in the application at Exhibit 24 the 1st respondent accused referred to order of costs and stated that the 1st respondent was desirous of preferring revision application against the said order and therefore he was unable to pay the amount of costs. However, the 1st respondent stated that he was ready to cross-examine the applicant. On the said application an order was passed by the learned Judge recording that the complainant was absent till 4.30 p.m. By the said order the learned Judge waived the amount of costs. 9. Firstly, it must be noted that on 20th December 2006 when the complaint was fixed any ordinary litigant would have carried an impression that cross-examination would not proceed unless the costs amount was deposited by the 1st respondent. It must be stated here that even in application at Exhibit 24 made by the 1st respondent on 20th December 2006, there was no prayer made by the 1st respondent for modification of the order directing payment of costs. In fact the said application records that the 1st respondent was intending to challenge the said order directing payment of costs. There is nothing on record to show that even a copy of the said (9) application was furnished to the applicant. Even assuming that an application for modification of the earlier order directing payment of costs was made, the same could not have been disposed of without hearing the applicant. Apart from this, there is no inherent power vesting in the Courts of learned Magistrate under the said Code of recalling or reviewing its orders. In fact there was no power vesting in the learned Magistrate to pass an order which will have an effect of modification of the earlier order directing payment of costs. In fact such modification was not even prayed for by the 1st respondent. The application at Exhibit 24 gives clear indication that the 1st respondent intended to file a revision application for challenging the order directing payment of costs. 10. The applicant-complainant must be under an impression that as the amount of costs has not been paid by the accused till 20th December 2006, there was no occasion to proceed with the recording of further evidence. It is true that on 09th January 2007 and 15th January 2007 the applicant was absent. However, it must be appreciated that on 20th December 2006, the learned Magistrate recalled the order directing the 1st respondent to pay costs without hearing the applicant. (10) The decision of the Apex Court in the case of S. Rama Krishna (supra) does not lay down that mere absence of the complainant is by itself a ground to exercise power under section 256 of the said Code. This was not a case where the applicant was negligent. On the contrary, the roznama shows that he was diligently prosecuting the complaint. The cross-examination of the applicant could not proceed on earlier dates as the 1st respondent sought time. If the aforesaid factors, namely, non payment of costs by the 1st respondent accused and the nature of order passed by the learned trial Judge on application at Exhibit 24 are considered, by no stretch of imagination the learned Magistrate could have exercised discretion under section 256 of the said Code by passing an order of acquittal. This is not a case where two views were possible. It must be noted here that the complaint was filed in the year 2003 and the applicant was diligently prosecuting the complaint. In fact the occasion for imposing costs arose as the accused was absent. In the circumstances, power of this Court under section 386 and in particular clause (a) thereof will have to be exercised by sending back the complaint for re-trial. 11. Hence, I pass the following order: (11) (i) The impugned judgment and order is quashed and set aside. (ii) The Complaint bearing S.T.C.No.8200 of 2003 is restored to the file of the learned Magistrate for re-trial. (iii) The learned Magistrate will proceed with case from the stage of recording of evidence. (iv) Hearing of the complaint is expedited and an endeavour will be made to decide the complaint within a period of six months from the date of receipt of writ of this order. (v) It is needless to say that this Court has not disturbed the order passed below Exhibit 24 and notwithstanding the failure of the 1st respondent to pay costs, the complaint will proceed and the 1st respondent will be entitled to cross-examine prosecution witnesses and (12) to lead his own evidence. (A.S.Oka,J)