Arjun Kumar Gupta v. Whether approved for reporting?1 No

Mr. Goverdhan Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the order dated

1.11.2011, passed by learned Judicial Magistrate First Class, Court No. 3, Shimla, District Shimla, H.P. (learned Trial Court), vide which the complaint filed by the appellant (complainant before learned Trial Court) for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was dismissed. (Parties shall hereinafter be referred 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the NI Act. The learned Trial Court found sufÏcient reasons to proceed against the accused and ordered the issuance of a summons for 28.3.2011. Learned Trial Court noticed on 28.3.2011 that the process was not received back and ordered issuance of fresh summons returnable for 19.8.2011. Learned Trial Court again noticed that the summons was not received back, hence bailable warrants were issued for the service of the accused on 1.11.2011. The matter was listed on 1.11.2011 when no one appeared on behalf of the complainant. Learned Trial Court held that the complainant had to lead evidence in support of the complaint; further proceedings could not be held in the absence of the complainant; hence, the complaint was ordered to be dismissed for the non-appearance of the complainant, and the accused was acquitted. 3

3. Being aggrieved by the order passed by the learned Trial Court, the complainant filed the present appeal asserting that the learned Trial Court erred in dismissing the complaint. The complainant could not appear before the learned Trial Court because the date of the hearing was mistakenly noted as

2.11.2011 instead of 1.11.2011. The complainant and his counsel appeared before the Court on 2.11.2011 and found that the complaint was already dismissed on 1.11.2011. Learned Trial Court erred in holding that the evidence was to be led. No notice of accusation was put to the accused, and the evidence could not be led in the absence of notice of accusation. Therefore, it was prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside.

4. I have heard M/s Sumeet Kaur and Meera Devi, learned counsel for the appellant/complainant and Mr. Goverdhan Sharma, learned counsel for the respondent/accused.

5. Ms. Sumeet Kaur, learned counsel for the appellant/complainant, submitted that the learned Trial Court erred in dismissing the complaint. The matter was listed for the service of the accused, and the evidence was not to be led. Notice 4 of accusation was to be put to the accused, and the learned Trial Court had not put any notice of accusation to the accused. Hence, the conclusion drawn by the learned Trial Court that the presence of the complainant was necessary in the present case is not correct. She prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside.

6. Mr. Goverdhan Sharma, learned counsel for the respondent/accused, submitted that there is no provision for putting notice of accusation to the accused, and the evidence was to be led. The case was to be tried as a summary complaint. There is no infirmity in the order passed by the learned Trial Court. Hence, he prayed that the present appeal be dismissed.

7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

8. A perusal of the order sheets maintained by the learned Trial Court shows that the accused was ordered to be summoned for 28.3.2011. The process was not returned, and the matter was listed on 19.8.2011 for the service of the accused. The Court ordered the issuance of bailable warrants for the service of the accused returnable for 1.11.2011. Thus, 5 the Court itself had posted the matter for the service of the accused and not for leading the evidence.

9. Section 262(1) of Cr.P.C. provides that in a trial under chapter XXI (summary trials), the procedure specified in the Code for the trial of a summons case shall be followed except as hereinafter mentioned. Section 263 of Cr.P.C. provides for the record in the summary trial. The learned Trial Court did not maintain the record provided under Section 263 of Cr.P.C. in the form prescribed by the State Government. Therefore, the submission that the learned Trial Court was following the procedure for trial of the summary cases is not acceptable.

10. Section 251 of the Cr.P.C. provides that when the accused appears or is brought before the Magistrate in a summons case, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make. Section 252 of Cr.P.C. provides that if the accused pleads guilty, the Magistrate shall record his plea and may, in his discretion, convict him. Section 254 of Cr.P.C. provides that if the 6 Magistrate does not convict him, the Magistrate shall hear the prosecution and take all such evidence as may be produced in support of the prosecution.

11. Thus, it is apparent that in a summons case, the Magistrate has to ask the accused whether he pleads guilty or has any defence to make. The question of leading the evidence by the complainant will arise only after the accused has pleaded not guilty and not before that. Therefore, the grievance of the complainant is justified that without putting the notice of accusation to the accused and recording his plea, the complainant could not have been asked to produce the evidence, and the findings recorded by the learned Trial Court that the complainant has to lead evidence are clearly incorrect.

12. Section 256 of Cr.P.C. reads as under: - “256. Non-appearance or death of the 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: 7 Provided that where the complainant is represented by a pleader or by the ofÏcer conducting the prosecution, or where the Magistrate is of the opinion that the personal attendance of the 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.”

13. The ingredients of Section 256of Cr.P.C. were noted by the Hon’ble Supreme Court in S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535: (2008) 2 SCC (Cri) 645: 2008 SCC OnLine SC 733 as under: “9. 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 reason, it is not proper to adjourn 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.

14. It is apparent that the learned Magistrate should be satisfied before dismissing the complaint that it is not proper to adjourn the hearing of the case. It was held in S. Anand v. Vasumathi Chandrasekar, (2008) 4 SCC 67: (2008) 2 SCC (Cri) 178: 2008 SCC OnLine SC 285, that where the presence of the complainant was not required, the complaint should not have been dismissed. It was observed: - 8 “12. Section 256 of the Code provides for the disposal of a complaint in default. It entails acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case, as the witnesses on behalf of the complainant have already been examined.

13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence.

14. The accused was entitled to file an application under Section 311 of the Code of Criminal Procedure. Such an application was required to be considered and disposed of by the learned Magistrate. We have noticed hereinbefore that the complainant did not examine herself as a witness. She was sought to be summoned again for cross- examination. The said prayer has not yet been allowed. But that would not mean that on that ground the court would exercise its discretionary jurisdiction under Section 256 of the Code of Criminal Procedure at that stage, or the defence would not examine his witnesses.

15. The presence of the complainant or her lawyer would have been necessary, as indicated hereinbefore, only for the purpose of cross-examination of the witnesses 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 necessary. Furthermore, when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the court is required to pass judgment on the merits of the matter.

15. It was held in BLS Infrastructure Ltd. v. Rajwant Singh, (2023) 4 SCC 326: 2023 SCC OnLine SC 200, that where the Magistrate is satisfied that the personal attendance of the 9 complainant is not necessary. He can dispense with the attendance of the complainant and proceed with the case.

12. A plain reading of the proviso to sub-section (1) of Section 256 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 complainant's/prosecution's evidence has been recorded, and to decide the case on merits, the complainant's presence is not necessary.

13. In S. Anand [S. Anand v. Vasumathi Chandrasekar, (2008) 4 SCC 67: (2008) 2 SCC (Cri) 178], addressing a situation where the complainant was absent but had already examined his witnesses, this Court observed as follows: (SCC p. 69, paras 12-13) “12. Section 256 of the Code provides for the disposal of a complaint in default. It entails acquittal. But the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case, as the witnesses on behalf of the complainant have already been examined.

13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence.” After observing as above, in para 15, it was held thus:(S. Anand case [S. Anand v. Vasumathi Chandrasekar, (2008) 4 SCC 67: (2008) 2 SCC (Cri) 178], SCC p. 70) “15. … when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the Court was 10 required to pass a judgment on the merit of the matter.”

14. In Associated Cement Co. [Associated Cement Co. Ltd. v. Keshvanand, (1998) 1 SCC 687: 1998 SCC (Cri) 475], the purpose of inserting a provision like Section 256 of the Code was discussed, and in light thereof, in para 16, it was observed as under: (SCC p. 693) “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 sets the law in motion through his complaint. An accused who is perforce to attend the court on all posting days 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 that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum.” After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on the non-appearance of the complainant. Thus, the order of acquittal was set aside, and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed.

15. In the instant case, we notice that there is a specific averment in the special leave petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses. In Para 5(u), it is stated that the trial court, as well as the High Court, did not take into consideration that the complainant's cross- examination had been over in Complaint Case Nos. 621742/16, 621743/16 and 621744/16, and no cross- 11 examination was sought in other cases. Rather, CW 1's cross-examination in the above three complaint cases was adopted. There appears to be no specific denial of the aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. 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.”

16. In the present case, the complainant had no role before the Court put the notice of accusation to the accused or decided to proceed with the matter in a summary way. Hence, the presence of the complainant was not necessary on

1.11.2011, and the complaint could not have been dismissed in default as per the binding precedents of this Court.

17. Thus, the learned Trial Court erred in dismissing the complaint for want of prosecution. The learned Trial Court was supposed to put notice of accusation to the accused and thereafter to proceed further as per the law. Hence, the order passed by the learned Trial Court in dismissing the complaint in default is not sustainable and it deserves to be interfered with.

18. In view of the above, the present appeal is allowed and the order passed by the learned Trial Court is ordered to be 12 set aside. The complaint is restored to its original position. The learned Magistrate is directed to proceed further as per the law.

19. The parties through their respective counsel are directed to appear before the learned Trial Court on 29th August,

20. A copy of the judgment along with the record of the learned Trial Court be transmitted to it to proceed further with the case in accordance with law.

21. The appeal stands disposed of, so also the pending application(s), if any. 21st August 2025 (Chander) (Rakesh Kainthla) Judge