Code of Criminal Procedure, 1973: s. 256(1) Proviso – Nonappearance of complainant – Dismissal of complaints for nonprosecution – Sustainability of – On facts, the appellant-complainant filed eight complaints u/s 138, N.I. Act – Complainant’s statement and cross examination were duly recorded – Accordingly, complainant’s evidence closed with date set for recording of defence evidence – Application u/s 311 CrPC also filed by complainant – However, complainant failed to register appearance on subsequent dates – Magistrate dismissed the complaints for non-prosecution – High Court affirmed the decision – Interference with – Held: Called for – Neither magistrate nor High Court took notice of the factual position that complainant had been examined and cross examined – Magistrate erred in dismissing the complaints straight away – Magistrate could have proceeded with available evidence on record – Furthermore, complainant’s presence could have been dispensed with in view of s. 256(1) proviso – Complaints restored – Negotiable Instruments Act, 1881 – s. 138.
Allowing the appeals, the Court
HELD: 1. A plain reading of the proviso to sub-section (1) of Section 256 of the Code of Criminal Procedure, 1973 would indicate that where the Magistrate is satisfied that the personal attendance of the complainant is not necessary, he can dispense with the attendance of the complainant and proceed with the case. Such a situation may arise where complainant’s/prosecution’s evidence has been recorded and to decide the case on merits, complainant’s presence is not necessary. [Para 10][188-A-B]
2. The trial court as well as the High Court did not take into consideration that the complainant’s cross-examination had been over in three complaint cases and the cross-examination in the above three complaint cases was adopted in other cases that remained. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant. [Para 13][189D-E]
3. Further, if the complainant had not appeared to press the application under Section 311 of the Code, the Magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence. [Para 13][189-F]
4. The Magistrate was not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere nonappearance of the complainant. The High Court too failed to take notice of the said aspects. Thus, the orders impugned are liable to be set aside. [Para 13][189-F-G]
Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687 : [1997] 6 Suppl. SCR 500; S. Anand v. Vasumathi Chandrasekar (2008) 4 SCC 67 : [2008] 2 SCR 870 - relied on.
S. Rama Krishna v. S. Rami Reddy (Dead) By His LRs & Others (2008) 5 SCC 535 : [2008] 6 SCR 1236 referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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