Crl.A. 36/2011 BEFORE HON’BLE MR. JUSTICE A. K. GOSWAMI The present appeal has been preferred under Section 378(4) of the Code of Crimin al Procedure, 1973, against the order of acquittal dated 19.4.08 passed by the l earned Judicial Magistrate 1st Class, Kamrup, Guwahati, in Complaint Case No. CR 2432C/2002, registered u/s 138 of the Negotiable Instruments Act, 1982, consequ ent upon dismissal of the case for non-prosecution on account of complainant bei ng absent. 2. The appellant had also filed an application under Section 378(4) of the Code of Criminal Procedure, 1973, praying for grant of special leave to appeal. Notice was issued to the respondents on the application for special leave. The s aid application was not contested by the respondents and, thereafter, by an orde r dated 24.2.11, special leave to appeal was granted. While admitting the appeal on 24.2.11, notice was directed to be issued to the respondents i.e. the accuse d as well the state of Assam. Registered steps taken on the respondent No. 1/acc used was refused by the respondent No. 1/accused. This Court, by an order dated 2.5.11, held that notice upon the respondent No. 1, in the factual matrix, was deemed to have been served. 3. I have heard Mr. M. Choudhury, learned counsel for the appellant as well as Mr. B. S. Sinha, learned Addl. Public Prosecutor, Assam appearing for the re spondent No.2, the State of Assam. 4. Mr. Choudhury, learned counsel for the appellant, submits that during tr ial, the complainant had examined 4(four) witnesses and, thereafter, by an order dated 24.8.07, the prosecution evidence was closed. On 19.9.07, the accused was examined u/s 313 CrPC. On the prayer of the accused to adduce evidence, the cas e was fixed for defence evidence. However, in view of the absence of the accused , the learned court below, by an order dated 21.1.08, had closed the defence evi dence. The learned counsel for the appellant also submits that after closer of t he evidence of the prosecution on 24.8.07, the appellant had also submitted a wr itten argument on 19.9.07 after serving copy of the same to the counsel for the accused. Though the evidence of the defence was closed by an order dated 21.1.08 , 1.2.08 was once again fixed for statement and defence. The learned counsel sub mits that after the closer of the defence evidence, there could not have been an y occasion for the learned trial court to have again fixed a date for statement and defence. On 8.1.08, the learned counsel, who was engaged to conduct the case on behalf of the appellant, had expired and subsequent thereto, the complainant had engaged another lawyer, who apparently did not take appropriate steps when the case was listed on 26.3..08 and 19.4.08. 5. Incidentally, on 19.4.08, the order which has given rise to the present appeal, was passed. The learned counsel further submits that the appellant had t o be hospitalized during that period because of her sickness and, therefore, the re was no laches and/or negligence on her part. Besides, she had also informed t he counsel about her hospitalization with a request to him to take appropriate s teps. 6. Mr. Choudhury, learned counsel for the appellant had submitted that in t he attending facts and circumstances of the case where the appellant had adduced her evidence, the accused was examined u/s 313 CrPC and the defence evidence st ood closed, the only thing remained was to deliver a judgment on the basis of ma terials available on record. It is the submission of the learned counsel for the appellant that for the purpose of rendering of judgment, the presence of the co mplainant is not required. The learned counsel submits that in the summons proce dure case like the one at hand, unlike Section 234 of the Code of Criminal Proc edure, 1973, there is no express provision for advancing argument. The only prov ision available is Section 314 CrPC, which provides an opportunity to make oral arguments and also to submit a memorandum to the court setting forth concisely a nd under distinct headings, the arguments in support of the case. The learned co unsel submits that apparently the learned Magistrate had taken recourse to Secti on 256 of the Code of Criminal Procedure, 1973, while passing the order dated 19 .4.08. The learned counsel contends that the learned Magistrate in the instant c ase is wrong in passing the order dated 19.4.08 dismissing the case for non-pros ecution. To support his contention, the learned counsel for the appellant has re lied on the judgment rendered in the case of Associated Cement Company Ltd. Vs. Keshavanand, reported in 1998(1) SCC 687 and the judgment in S. Anand Vs. Vasum athi Chandrasekar, reported in 2008 (4) SCC 67. 7. Mr. Sinha, learned Addl. Public Prosecutor, Assam, has also supported th e argument of the learned counsel for the appellant. He also, placing reliance o n the same judgment in Associated Cement Company Ltd.(supra), submits that it ap pears to be well settled that just because the appellant is absent, it does not mean that the court has a duty to acquit the accused. According to him, the cour t must consider whether the personal attendance of the complainant is necessary on that day for the progress of the case and depending on the situation, an app ropriate order is called for. 8. I have given my anxious consideration to the submissions of the learned counsel for the parties. 9. It would appear that, on 3.3.03, the accused had filed a petition prayin g for time for payment of money. The prayer was allowed and, in fact, on 6.5.03, the accused had deposited a cheque for ‘23,000/-. The cheque, however, was dish onoured due to insufficiency of fund, as recorded by the trial court in its orde r dated 3.6.03. The complainant was examined on 12.12.06. She was cross examined and discharged on that very date. On 22.2.07, two more witnesses in the form of PWs 2 and 3 were examined by the complainant and they were also discharged. The prosecution evidence was closed after examination of PW 4 on 24.8.07 and by the said order dated 24.8.07, 19.9.07 was fixed for statement and defence of the ac cused. As has been noted earlier, on 19.9.07, the accused was examined u/s 313 C rPC. The prayer of the accused to adduce evidence on his behalf was also accepte d by the court, thereby fixing 21.1.08 as the date for evidence of defence. Subs equently, on 21.1.08, because of non-appearance of the accused and/or his witnes ses, defence evidence was closed by the learned trial court. However, by the sai d order dated 21.1.08, 1.2.08 was fixed for statement and defence. The learned c ounsel for the appellant is justified in saying that once the trial court had cl osed the evidence of the accused for non-production of his witnesses and for not being present in the court, the learned trial court was not correct in fixing a date for statement and defence again. The learned trial court should have proce eded to examine the materials on record and should have fixed a date for pronoun cing the judgment. 10. The question is, whether in the aforesaid factual matrix of the case, th e learned trial court could have resorted to act in the manner as it did by dism issing the petition for non-prosecution, correspondingly acquitting the accused person. In this context, it would be relevant to consider the scope and ambit of Section 256 CrPC. For ready reference, Section 256 CrPC is extracted hereinbelo w - 256. Non-appearance or death of complainant - (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or an y day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore con tained, acquit the accused, unless for some reason he thinks it proper to adjour n the hearing of the case to some other day. Provided that where the complainant is represented by a pleader or by the office r conducting the prosecution of where the Magistrate is of opinion that the pers onal attendance of the complainant is not necessary, the Magistrate may dispense with this attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cas es where the non-appearance of the complainant is due to his death. 11. The Apex Court in Associated Cement Co. Ltd.,(Supra) had explained the p urpose of including Section 256 in the Code, which was to afford some deterrence against the dilatory tactics on the part of the complainant, who set the law in motion through his complaint. An accused is, per force, to attend the court as and when the case is fixed and it may lead to harassment of the accused by a com plainant if a complainant does not turn up on occasions when his presence is nec essary. The object of Section 256 of the Code, as has been held by the Apex Cour t, is to afford protection to an accused against such possible tactics of the co mplainant. At the same time, the Apex Court had laid down that it does not mean that whenever the complainant is absent, a duty is cast on the trial court to ac quit the accused. In paragraph 17 the Supreme Court stated thus : 17. Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The first is, i f the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that d ay the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is e ssential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reas on. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the com plainant on that day was quite unnecessary then resorting to the step of axing d own the complaint may not be a proper exercise of the power envisaged in the sec tion. The discretion must therefore be exercised judicially and fairly without i mpairing the cause of administration of criminal justice. 12. From the aforesaid, it is clear that a duty is cast on the court to cons ider in the event the complainant is absent on a particular day, as to whether h is personal attendance was essential on that day for the progress of the case an d also whether the situation does not justify the case to be adjourned to anothe r date due to any other reason. If the situation does not justify the case to be adjourned, the court may be free to dismiss the complaint and acquit the accuse d. On the other hand, if the presence of the complainant was not necessary, then penalizing the complainant by way of dismissing the complaint for non-prosecuti on may not be a proper exercise of power as contemplated in the provision. The b ottom line is that the discretion must be exercised judicially and fairly withou t impairing with the cause of administration of criminal justice. 13. Similar view has been taken in S. Anand(supra). Paragraph 15 of the judg ment is very material for the purpose of this case and, therefore, the same is q uoted hereinbelow - 15. Presence of the complainant or her lawyer would have been necessary, as indicated hereinbefore, only for the purpose of cross-examination of the witness es examined on behalf of the defence. If she did not intend to do so, she would do so at her peril but it cannot be said that her presence was absolutely necess ary. Furthermore, when the prosecution has closed its case and the accused has b een examined under Section 311 of the Code of Criminal Procedure, the court was required to pass a judgment on merit of the matter. 14. From the aforesaid, it is manifest that when the prosecution has closed its case and the accused have been examined u/s 313 CrPC of the Code of Criminal Procedure, 1973, the court was required to pass a judgment on merit of the matt er. 15. In view of the aforesaid discussions, I am of the considered opinion tha t the learned Magistrate was not justified in dismissing the case for non-prosec ution taking a view that the complainant was not interested to proceed with the case. Resultantly, the acquittal of the accused, setting him at liberty, is also not warranted under the facts and circumstances of the case. 16. In the result, the appeal succeeds. The order dated 19.4.08 is set aside . The appellant is directed to appear before the learned trial court on 2.9.11. 17. The learned trial court, bearing in mind, the observations hereinabove, shall proceed with the case in accordance with law. 18. The LCR be transmitted forthwith.