(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3836 OF 2007. Shri Pradeep Chandrakant Raut. .. Applicant. Versus Versus Versus Shri Umesh Vasantrao Gaikwad & Anr. ..Respondents. .... Mr.N.P. Bapat, Adv. for Applicant. Mr.V.B.Konde-Deshmukh, APP for Respondent No.2 - State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 26th June, 2008. DATED : 26th June, 2008. DATED : 26th June, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the applicant. None appears for respondent No.1-original accused, though served. 2. The applicant had filed a complaint on 8.10.2005 against respondent no.1 under section 138 of the Negotiable Instruments Act. The said case is S.C. 408/2005 and it was pending before the learned J.M.F.C., Dapoli. In the said case, process was issued against the respondent - accused under section 138 of the Negotiable (2) Instruments Act. Thereafter, the matter went on. 3. On 28.09.2007, the complainant could not appear before the court, as he was out of station. Hence, an application for exemption from personal appearance was preferred by his advocate. The said application came to be allowed on that day, subject to cost of Rs.5,000/-. The learned Magistrate directed that the said cost should be deposited on that day itself. The matter was kept back. However, as the complainant was not present and he was out of station, the learned Advocate for the applicant could not contact him, the learned Advocate also could not deposit the amount. She prayed for some time to deposit the amount, however no time was granted. At 5.00 p.m. on seeing that amount of Rs.5,000/- was not deposited, the matter came to be dismissed. 4. On 28th September 2007, the matter was kept back for depositing cost. On that day, the learned Advocate for the applicant stated that she could not contact the complainant on telephone or by any other means and she herself, was not in a (3) position to deposit the cost or even file an application seeking time to deposit the cost. The learned Magistrate observed that for want of depositing cost and for non-compliance of the earlier order, the complaint needs to be dismissed. And in such circumstances, the complaint came to be dismissed. 5. On 28.09.2007, the witness of the complainant was present. He had filed his affidavit by way of examination-in-chief. However, the learned Advocate for the accused refused to cross-examine the witness, and stated that the complaint should be dismissed, as the complainant was absent. It is pertinent to note that the learned Advocate for the complainant had not sought an adjournment but only exemption of the complainant from personal appearance on that day. On 28.09.2007, the witness of the complainant was present, his examination-in-chief was over, thereafter, he had to be cross-examined. The Advocate for the complainant was very much present and she could have looked after the interest of the complainant when the witness was being cross-examined. In (4) such case, the trial could go on and there was no need to adjourn the matter. Absence of the complainant would not have hampered the trial. 6. In order to appreciate the controversy involved in this matter, it is necessary to reproduce the provisions of section 256 of Cr.P.C. which is as under :- . "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 any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day : . 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 (5) complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. . (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. . A brief perusal of the above section, would indicate that the section is mandatory in nature and if the complainant does not appear on the date of hearing, the Magistrate shall acquit the accused. However, the latter part of the section clearly indicates that the Magistrate has another option, i.e. to adjourn the hearing of the case to some other date. The third option which is available to the Magistrate under this section is that, the Magistrate may proceed with the case if in the opinion of the Magistrate, the personal appearance of the complainant is not necessary. 7. On perusal of the order passed by the learned Magistrate, I find that the learned Magistrate has (6) nowhere stated in the order as to why the personal attendance of the complainant was necessary when on the said date the case was kept for cross-examining the witness of the complainant. 8. The reasons for absence of the complainant can be numerous. Sometimes the reasons may be beyond the control of the complainant. Even though the Magistrate is not bound by the provisions of the statute to do so, there is nothing wrong in adjourning the case to another date so that the Magistrate may satisfy himself that the absence of the complainant was not due to lack of diligence, or if the complainant’s presence is not required on the particular day, the Magistrate may dispense with the attendance of the complainant and proceed with the case. In all such cases, the Magistrate is expected to take stock of the whole situation before he uses his discretion and decides the course to be followed. The Magistrate should not view the absence of the complainant, as a short-cut for disposal of the case. Under section 256 of Cr.P.C., dismissal of a complaint for non-appearance is one of the options given to the (7) Magistrate, however, that is not the only option and there are other options which the Magistrate can exercise. He has the option to adjourn the hearing of the case to some other date. He has also the option to dispense with the attendance of the complainant and proceed with the complaint. When a statute vests various options with the Magistrate, it is necessary that the option which he adopts should be exercised judiciously and to advance the cause of justice. 9. Admittedly, on the said date, the witness of the complainant was present, therefore, the learned Magistrate could very well have exercised the option to dispense with the attendance of the complainant and to proceed with the case. When the witness of the complainant was present, the learned Magistrate should have proceeded with the case and asked the learned counsel for the respondent to cross-examine the witness. There was no reason to dismiss the complaint due to absence of the complainant. There was no need to use a short cut method of dismissing the complaint. It was not at all essential that the (8) complainant should have remained present before the Court. 10. In the first order dated 28.09.2007, the learned Magistrate granted adjournment subject to cost of Rs.5,000/- to be paid on the very day. The matter pertains to small village like Dapoli. The complainant was not in Dapoli on that day. Hence, it was not possible for Advocate to contact the complainant. Moreover, Dapoli being a small place, it is not expected that the Advocate would be carrying Rs.5,000/- with her in order to deposit it on the same day. Such a condition was extremely unreasonable and the learned Magistrate ought not to have imposed such unreasonable condition. In a case like this, when the presence of the complainant is not necessary and if the facts and circumstances of the case so require to prevent the failure of justice, a complaint can be restored. 11. In view of the above, the complaint is restored to file and the learned Magistrate is directed to proceed with the trial of the case (9) after issuance of formal notices to both the parties of the next date to be fixed in the case. 12. Application is disposed of in the above terms. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)