IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1739 OF 2008 India Fintrade Limited .. Applicant Versus Cherry Fashions Ltd & Ors. .. Respondents Mr.Amol Patankar for the applicant. Mr.Uday P. Warunjikar for respondent Nos.1 to 4. Mr.J.P.Yagnik, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 03rd April 2009. : 03rd April 2009. : 03rd April 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . By the order dated 20th February 2009, this Court directed that the application and/or appeal will be heard at the stage of admission. Accordingly, the same is taken up for final dismissal. The applicant is the complainant in a complaint filed against the respondent Nos.1 to 4 alleging commission of offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act). The process was issued on the said complaint. By order dated 16th July 2007, the learned Special Metropolitan Magistrate purportedly exercised the power under section 256 of the Code of Criminal (2) Procedure, 1973 (hereinafter referred to as the said Code). The learned Magistrate by the impugned order dated 16th July 2007 acquitted the 1st to 4th respondents-accused. 2. The learned counsel appearing for the applicant has placed reliance on roznama of the complaint. He pointed out that on 11th June 2005 the learned Magistrate passed an order for issuing summons by publication as against the accused Nos.1 and 4. He pointed out that in terms of the order dated 11th June 2005, publication of notice was made. He has placed reliance on the publication of notice of accused Nos.1 to 4 in daily "Free Press Journal" dated 04th July 2005 and Gujarati daily "Janmabhumi" dated 04th July 2005. The xerox copies of the relevant cuttings of the newspapers have been annexed. Inviting my attention to the roznama of the proceedings, he stated that case was adjourned on many occasions as the Court was vacant. He submitted that the applicant was diligently prosecuting the complaint and there was no default on the part of the applicant. He submitted that the ground on which the impugned order is passed by the learned Magistrate is completely erroneous. (3) 3. The learned counsel appearing for the accused has opposed the submissions made by the learned counsel appearing for the applicant. He submitted that the authorised representative of the applicant was absent on many dates. He invited my attention to roznama of the proceedings. He submitted that there is no explanation for the repeated absence of the authorised representative of the applicant. He submitted that the complaint is pending from the year 1998. He placed reliance on a decision of the Apex Court in the case of S. Rama Krishana v. S. Rami Reddy (Dead) By his legal representatives & Ors. [(2008) 5 Supreme Court Cases 535]. He submitted that the view taken by the learned Magistrate that the complaint was required to be dismissed is certainly a possible view. He submitted that the learned Magistrate has rightly exercised the discretion under section 256 of the said Code. He submitted that in such a situation there is no option for the learned Magistrate but to exercise power under section 256 of the said Code. He placed reliance on a decision of Madras High Court in the case of Sowbagyam v. Kaliamusthi (1971 Criminal Law Journal 437). He submitted that it is imperative on the part of the (4) learned Magistrate to acquit the accused when the complainant is absent on the date fixed for hearing of the complaint. He submitted that in an appeal against acquittal, the Court cannot embark on the enquiry regarding sufficiency of the reasons for the absence of the complainant or otherwise. The learned counsel appearing for the accused submitted that as the view taken by the learned Magistrate is certainly a possible view, no interference can be made in an appeal against acquittal. 4. I have given careful consideration to the submissions. I have perused the roznama of the case. As noticed in several matters pending in the Courts of Metropolitan Magistrates in the City of Mumbai, the roznama in this case has not been properly maintained. The Chapter III of the Criminal Manual requires roznama to be maintained in a particular format. Paragraph 2 of Chapter III of the Criminal Manual is relevant which reads thus: "2. (i) A proceeding sheet (Roznama) should, in the form given below, be kept in English in all inquiries, trials and other (5) cases. It is meant only as a guide and is not intended to be exhaustive. In uncontested non-cognizable cases, a proceeding sheet (Roznama) may not be maintained. (ii) The object of Roznama is to show in concise form the proceedings taken in each with the date of each proceeding. It is to be faithful history of the case and correct list and description of the exhibits, and at the same time, it should be so drawn up as to show all the details of the case at one view and yet be as concise as possible. It is not to include a record of ministerial acts, such as the receipts of bhatta or process fees, the preparation of summonses and the like. (iii) It must be kept from day to day as an original document. It may be written by a clerk but must be initialled or signed by the Magistrate at the end of the proceeding recorded every day." (6) 6. In paragraph 2 of Chapter III of the Criminal Manual the format of roznama has been prescribed. In the present case the roznama is not maintained in a chronological order. On the top of the left hand side of first page there is a roznama of the date starting from 18th July 2006 and ending with 11th June 2005. On the next page the roznama starts from 11th June 2005 and ends with 15th October 2003. The exhibit numbers given to vakalatnama, application etc have not been incorporated in the roznama. The provisions of Criminal Manual are binding even on the Courts of the Metropolitan Magistrate in the city of Mumbai. I am constrained to observe that the roznama has been maintained in a very shabby manner. I have already issued directions in another case to the learned Chief Metropolitan Magistrate to ensure that roznama is recorded in terms of the provisions of the Criminal Manual. 7. Perusal of the roznama dated 11th June 2005 shows that accused Nos.2 and 3 were present and the learned Magistrate issued summons to accused Nos.1 to 4 by publication in newspapers. Exhibit D (collectively) annexed to the application for leave show that the (7) compliance was made by the applicant by making necessary publication on 04th July 2005. The roznama shows that on the returnable date i.e on 16th August 2005 and thereafter on 03rd October 2005, 25th November 2005, 15th December 2005, 23rd January 2006 and 07th March 2006, the complaint was adjourned as the Court was vacant. The roznama shows that on 13th April 2006 the Court was vacant and the complaint was adjourned to 18th July 2006. On 18th July 2006, the board was discharged and therefore the complaint was adjourned to 13th September 2006. On 13th September 2006, 06th December 2006 and 08th February 2007, the complaint was adjourned as the Court was vacant. On 14th May 2007, the applicant and his advocate were absent. But it is pertinent to note that the accused No.4 was present and he applied for exemption. The appearance of accused No.4 on that day shows that the applicant had complied with the earlier order of publication. The case was adjourned to 07th June 2007 on which day again the Court was vacant. Even on the next date i.e 27th June 2007 the Court was vacant and the Complaint was adjourned to 16th July 2007. The impugned order dated 16th July 2007 reads thus: (8) "On perusal of record, it appears that order dated 11.06.2005 is not at all complied with. The matter is of 1998 and unnecessary pending due to non-compliance of the orders. Considering these facts, the complaint is dismissed for want of prosecution and failure of the complaint to take necessary steps within reasonable time. Accused on record shall accordingly stand acquitted. Bail bond of the accused, if any, shall stand cancelled. Proceeding accordingly closed." 8. The roznama of the earlier dates shows that the case was repeatedly adjourned as the Court was vacant. There is no entry in the roznama that on 16th July 2007 or on any earlier date the complaint was fixed for recording of evidence. The observation made by the learned Judge that order dated 11th June 2005 was not complied with is factually incorrect. That is apparent from the record that as on 14th May 2007 the 4th accused had appeared and applied for exemption. The statement that due to non-compliance of the order, the complaint of the year 1998 was pending is again an incorrect (9) statement. Perusal of the roznama shows that the applicant cannot be blamed if the complaint of 1998 remained pending. On larger number of dates, the complaint was adjourned as the Presiding Officer was not available. The observation that the complainant has not taken the steps in reasonable time is again factually incorrect. 9. In the light of this factual situation, it will be necessary to refer to the decision of the Apex Court in the case of S. Rama Krishna (supra) relied upon by the learned counsel appearing for the 1st to 4th respondents. In paragraph Nos.12 to 14 of the said decision the Apex Court has held thus: "12. The learned Magistrate in terms of sub-section (1) of Section 256 exercises wide jurisdiction. Although an order of acquittal is of immense significance, there cannot be any doubt or dispute whatsoever that the discretion in this case had been properly exercised by the learned Magistrate. (10) 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. The conduct of the care and caution. The conduct of the care and caution. The conduct of the complainant complainant complainant for the said purpose is of immense for the said purpose is of immense for the said purpose is of immense significance. significance. 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 remained absent or was otherwise represented by his advocate. He had to remain present in the Court. He attended the Court on not less than 20 occasions after the death of the original 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. 14. The High Court was exercising its jurisdiction under sub-section (4) of Section (11) 378 of the Code of Criminal Procedure. The appeal preferred by the respondents was against a judgment keeping in view the limited role it had to play in the matter." (Emphasis added) 10. As far as the decision of the Madras High Court in the case of Sowbagyam (supra) is concerned, in paragraph No.12 of the aforesaid decision of the Apex Court, it is held that there is a discretion vested in the learned Magistrate under section 256 of the said Code and therefore the view of the Madras High Court does not appear to be consistent with the view of the Apex Court. The view taken by the Madras High Court is that whenever the complainant is absent, it is imperative that the complaint should be dismissed. 11. It will be also necessary to refer to another decision of the Co-ordinate Bench of the Apex Court in the case of Associated Cement Co Ltd v. Keshavanand [(1998) 1 Supreme Court Cases 687]. It is will be necessary to refer to paragraphs 15 to 17 of the said decision which read thus: (12) "15. Section 256 of the Code of Criminal Procedure, 1973 (for short "the new Code") is the corresponding provision to section 247 of the old Code. The main body of both provisions is identically worded, but there is a slight difference between the provisos under the two sections. The proviso to Section 256 of the new Code is reproduced here: . "Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case." 16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days (13) can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But But But that that that does not mean if the complainant is absent, does not mean if the complainant is absent, does not mean if the complainant is absent, the the the court has a duty to acquit the accused is court has a duty to acquit the accused is court has a duty to acquit the accused is invitum. invitum. invitum. 17. Reading Reading Reading the section in the section in the section in its its its entirety would reveal that two constraints entirety would reveal that two constraints entirety would reveal that two constraints are are are imposed on the court for exercising the imposed on the court for exercising the imposed on the court for exercising the power power power under the section. The first is, if the under the section. The first is, if the under the section. The first is, if the court court court thinks that in a situation it is proper to thinks that in a situation it is proper to thinks that in a situation it is proper to adjourn adjourn adjourn the hearing then the Magistrate shall the hearing then the Magistrate shall the hearing then the Magistrate shall not not not acquit the accused. The second is, when the acquit the accused. The second is, when the acquit the accused. The second is, when the Magistrate Magistrate Magistrate considers that personal attendance of considers that personal attendance of considers that personal attendance of the the the complainant is not necessary on that day the complainant is not necessary on that day the complainant is not necessary on that day the Magistrate Magistrate Magistrate has the power to dispense with his has the power to dispense with his has the power to dispense with his attendance attendance attendance and proceed with the case. When the and proceed with the case. When the and proceed with the case. When the court court court notices that the complainant is absent on notices that the complainant is absent on notices that the complainant is absent on a particular day the court must consider whether particular day the court must consider whether particular day the court must consider whether personal personal personal attendance of the complainant is attendance of the complainant is attendance of the complainant is essential essential essential on that day for the progress of the on that day for the progress of the on that day for the progress of the case case case and also whether the situation does not and also whether the situation does not and also whether the situation does not justify justify justify the case being adjourned to another date the case being adjourned to another date the case being adjourned to another date (14) due due due to any other reason. to any other reason. to any other reason. 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 complainant But if the presence of the complainant But if the presence of the complainant on on on that day was quite unnecessary then resorting that day was quite unnecessary then resorting that day was quite unnecessary then resorting to to to the step of axing down the complaint may not the step of axing down the complaint may not the step of axing down the complaint may not be be be a proper exercise of the power envisaged in a proper exercise of the power envisaged in a proper exercise of the power envisaged in the the the section. The discretion must therefore be section. The discretion must therefore be section. The discretion must therefore be exercised exercised exercised judicially and fairly without judicially and fairly without judicially and fairly without impairing impairing impairing the cause of administration of the cause of administration of the cause of administration of criminal criminal criminal justice." justice." justice." (Emphasis added) 12. The Apex Court has thus reiterated that if the complainant remains absent, there is no duty on the Court to acquit the accused in invitum. In fact the Apex Court held that whenever it is noticed that complainant is absent on a particular date, the Court must consider whether personal attendance of the complainant was essential on that date for the progress of the case. It will be also necessary to refer to a decision of the Apex Court in the case of Mohd. Azeem v. A. Venkatesh and Anr [(2002) 7 Supreme Court Caes 726] wherein the Apex Court held that a single default (15) on the part of the complainant cannot be a ground to exercise power under section 256 of the said Code. 13. Turning to the facts of the present case, it is obvious that the reasons recorded by the learned Judge are completely erroneous and contrary to the record. Under no circumstances the said reasons could have been recorded by the learned trial Judge for exercising power under section 256 of the said Code. From 11th June 2005 to 16th July 2007 the court had no presiding Judge on 14 dates. On none of these dates the absence of the applicant has been recorded in roznama. On the dates prior to 16th July 2007 the Court was vacant. Even on 16th July 2007 the case is not shown for hearing. The order of dimissal passed by the learned Judge is on the ground that order dated 11th June 2006 is not complied with. This is factually incorrect. Under no circumstances, the learned Judge could have taken the view which he has taken. Therefore, this is not a case where two views are possible. The impugned order is perverse. As held by the Apex Court power under section 256 of the said Code cannot be exercised only on account of absence of the complainant and the learned Magistrate has to exercise discretion after considering the conduct (16) of the applicant. 14. Hence, I pass the following order: (i) The impugned order dated 16th July 2007 is quashed and set aside. (ii) The complaint No.2613/SS/2005 is restored to the file of the learned Magistrate. (iii) The learned Magistrate will proceed with the complaint in accordance with law after issuing fresh summons to the accused. (iv) Hearing of the complaint is expedited. (A.S.Oka,J)