[2008) 6 S. C.R. 1236

S. RAMA KRISHNA

S. RAMI REDDY (D) BY HIS LRS. & ORS.

(Criminal Appeal No. 755 of 2008)

APRIL 29, 2008

[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]

Code of Criminal Procedure, 1973 - ss. 256 and 378 - Criminal proceedings for dishonour of cheque - Acquittal of c accused by magistrate in view of absence of the complainant in the proceedings for a long period - High Court setting aside acquittal - On appeal, held: Magistrate had rightly acquitted the accused in exercise of its discretionary jurisdiction - High Court was not right in interfering therewith in exercise of its

D jurisdiction uls 378 - Speedy trial is fundamental right of the accused - Orders passed by competent court of law and the provisions of Cr.PC. must be construed having regard to the

Constitutional Scheme and legal principles - Interpretation of Statutes - Constitution of India, 1950 - Article 21 -

E Negotiable Instruments Act, 1881s. 138 rlw s. 142.

Proceedings u/s 138 r/w s. 142 of Negotiable Instruments act, 1881 were initiated on the complaint of the respondent. After death of the original complainant, though application for substitution was filed, no order was F passed in the application. As the legal heirs of the

complainant remained absent on the dates of hearing of " the matter for a long period, the Magistrate acquitted the appellant-accused in exercise of his jurisdiction uls 256 Cr.P.C. High court set aside the order of acquit1al holding

G that the court should not have decided the case on technicalities. However, High Court found that it was the complainant's legal heirs who were interested in getting the matter prosecuted. Hence the present appeal. ...

Allowing the appeal, the Court H 1236

S. RAMA KRISHNA v. S. ~Ml REDDY (D) BY HIS 1237

LRS. & ORS.

HELD: 1.1 The provisions of Section 256 (1) Cr.P.C.

A 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 discretion conferred upon the Magistrate, however, must be exercised with great care and caution. B 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 matter remained pending for more than five years. It was obligatory on the part of the respondents to press their application for c substitution. They did not file attendance of their witnesses. The case was fixed for hearing. [Paras 8 and

10) [1241-A-B; 1240-F-G]

1.2 Appellant had been attending the court for a long time, except on some dates when remained absent or was D ., otherwise represented by his Advocate. He attended the court on not less than 20 occasions after the death of the original complainant. If in the aforementioned situation, the Magistrate exercised his discretionary jurisdiction, the same, should not have been ordinarily interfered with.

E [Para 10) [1241-C-D]

2.1 The High Court was exercising its jurisdiction under sub-Section (4) of Section 378 Cr.P.C .. The appeal preferred by the respondents was against a judgment of acquittal. The High Court should have, therefore, F > exercised its jurisdiction keeping in view the limited role it had to play in the matter. 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, G a judgment of acquittal should not ordinarily be interfered

o<( with. [Paras 11and12] [1241-E, G-H]

2.2 The High Court itself had come to the finding that the respondents were not interested in getting the matter H

A prosecuted. Despite the same, it allowed their appeal,

opining that any tis between the parties should be decided on merits rather than on technicalities. There exists a distinction between a civil case and a criminal case.

Speedy trial is a fundamental right of an accused. The B orders passed by the competent court of law as also the provisions of Code of Criminal Procedure must be construed having regard to the Constitutional scheme and the legal principles in mind. [Para 12) [1241-F;

1242-A-B]

C CRIMINAL APPELLATE JURISDICTION : Criminal

Appeal No. 755 of 2008.

From the Order dated 30.8.2006 of the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1149/ 2006.

Guntur Prabhakar for the Appellant.

Bharathi Reddy and T.V. Ratnam for the Respondents.

The Judgment of the Court was delivered by

E S.B. SINHA, J. 1. Leave granted.

2. Appellant issued two cheques for a sum of Rs. 5,00,000/ -(Rupees Five lakhs) each in favour of the original complainant

- i.e. S. Rami Reddy (since deceased) on or about 9.1.2001 and 10.1.2001.

The said cheques were deposited in a bank for collection on or about 25.2.2001. They were dishonoured.

Rami Reddy filed a complaint petition in the Court of Additional Judicial Magistrate First Class, Kurnool purported G to be under Section 138 read with Section 142 of the Negotiable

Instruments Act, 1881 (for short 'the Act') on 6.6.2001. It was registered as C.C. No. 368 of 2001. Rami Reddy expired on 28.10.2003. Respondents herein filed an application for substitution of their names in place of the said Rami Reddy on H 22.12.2003. Appellant filed an objection thereto. No order was

- <

S. RAMA KRISHNA v. S. RAMI REDDY (D) BY HIS

passed on the said application. The-counsel appearing on behalf Aof the complainant started-representing the proposed heirs of the said Rami Reddy. It appears that on or about 18.4:2005 till 23.1.2006, i.e., on- :14 dates nobody represented the complainant. · -- . -

3. On 23.1.2006, noticing that the respondents had not 8

been attending the court for a long time, the appellant was acquitted by the learned Magistrate-in purported exercise of his. jurisdiction under Sectiol) 256 of, the Code.rpf Criminal Procedure. An appeal was preferred thereagainst.before.the High Court of Andhra Pradesh questioriing"the validity of the corder dated 23.1.2006.

By reason of the impugned judgment, a learned single judge of the High Court set aside the said judgment of acquittal holding: D "A perusal of the docket order passed by the Court below, coupled with the extract of diary maintained by the Court below, show that the matter has undergone several adjournments due to the absence of the appellants only, and ultimately, on 23.1.2006 the trial court passed the E impugned order. From this it is clear that the appellants are not interested in getting the matter prosecuted.

However, as this Court has consistently taken the view that any lis between the parties shall be decided on merits rather than on technicalities, this Court is of the view that F the appellants may be given one more opportunity to get the matter prosecuted."

Appellant is, thus, before us.

4. Mr. Guntur Prabhakar, learned counsel appearing on behalf of the appellant, would submit that the High Court had G committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that since the complainant remained absent for a long time, there was no justification for setting aside the order of acquittal passed by H

SUPREMF COURT REPORTS

[2008] 6 S.C.R.

A the learned Magistrate.

5. The learned counsel appearing on behcl'lf of the respondents, however, supported the _impugned judgment.

6. Admittedly, the respondents themselves did not seriously B press their applications for their substitution in piace of the

original complainant. '

7. Section 256 of the Code. of Criminal Procedure empowers a Magistrate to pass an .order of acquittal on nonappearance or death of the complainant.

rhe complaint petition was filed in the year 2001. Rami Reddy died in 2003. A large number of dates were fixed for hearing of the case. Although, on some dates, the respondents were either present in court in person or were represented by

0 their Advocate, but as noticed hereinbefore, continuously for about 15 dates fixed for hearing, they remained absent.

The ingredients of Section 256(1) are: (i) that summons must have been issued on a complaint, (ii) the Magistrate should be of the opinion that for some reasons, it is not proper to adjourn E the hearing of the case to some other date; and (iii) the date on which the order under Section 256(1) can be passed is the day appointed for appearance of the accused or any day subsequent thereto, to which the hearing of the case has been adjourned.

It is not a case where the proviso appended to sub-Section F (1) of Section 256 of the Code was applicable.

8. The matter remained pending for more than five years.

It was obligatory on the part of the respondents to press their application for substitution. They did not file attendance of their G witnesses. The case was fixed for hearing.

9. 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

•-I properly exercised by the learned Magistrate.

S. RAMA KRISHNA v. S RAMI RED°L)Y:(tJfBY HIS

 10. The provisions of SectionJ2'5S(1) rnahdate the A Magistrate to acquit the accused unle'sst'fot: some reason ht=i thinks it proper to adjourn the 11earir'f§ tof"the case. If ah exceptional course is to be adopted, it fflu%t'f>~ spelt out. The discretion conferred upon the learnedMa€Jitr'ate, however,'must

be exercised with great care and caution. ithe conduct of the B complainapt fo.~ t.he said p\Jrpose i~ ofi}m.IJ1~se. significance.

He cannot allow a case to remain pe.o.qiqg. for an inde.finie . ,~ •. -

~. ':J•1,), _._.,,.~ ,..·" . <'' period. Appellant had been attending the court for a long time, except ot'I some 'dates where when remaini:!d absent or was otherwise represented by his Advocate. ' • ·· · c .

He had tb•-remain present in 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.

11. The High Court was exercising its jurisdiction under sub-Section (4) of Section 378 of the Code of Criminal Procedure. The appeal preferred by the respondents was against a judgment of acquittal. The High Court should have, therefore, exercised its jurisdiction keeping in view the limited E role it had to play in the matter.

12. 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 F .. 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 G 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.

A There exists a distinction between a civil case and a criminal case. Speedy trial is a fundamental right of an accused.

The orders passed by the competent court of law as also the provisions of Code of Criminal Procedure must be construed having regard to the Constitutional scheme and the legal B principles in mind.

13. The High Court, in our opinion, therefore, misdirected itself in passing the impugned judgment.

It can therefore not be sustained. We set aside the order c of the High Court accordingly. The Appeal is allowed.

K.K.T.

Appeal allowed.