Summary
In eight cheque dishonour complaints under Section 138 of the Negotiable Instruments Act, 1881, the complainant's evidence had been recorded and closed, with the matter listed for defence evidence and a pending application under Section 311 CrPC; the complainant then failed to appear and the Magistrate dismissed all complaints for non-appearance, which the Delhi High Court upheld. The Supreme Court set aside both orders: under the proviso to Section 256(1) CrPC the Magistrate may dispense with the complainant's attendance where it is unnecessary, as when the complainant's evidence is already on record, and following Associated Cement and S. Anand the court should then decide on merits rather than acquit for mere absence; the Section 311 application could simply have been rejected for non-prosecution.
Issues
- Whether a Magistrate is justified in dismissing a complaint under Section 138 of the Negotiable Instruments Act, 1881 and acquitting the accused under Section 256(1) CrPC for the complainant's non-appearance after the complainant's evidence has been recorded and closed and the case stands at the stage of defence evidence.
Provisions considered
- Section 256(1) and its proviso, Code of Criminal Procedure, 1973Though non-appearance of the complainant ordinarily entails acquittal, the proviso permits the Magistrate to dispense with attendance and proceed where the complainant is represented or personal attendance is unnecessary; where the complainant's evidence is complete and the case is at the defence stage, the court should decide on merits. (¶¶ 8, 10, 11, 12, 13)
- Section 311, Code of Criminal Procedure, 1973If the complainant did not appear to press its application to summon further witnesses, the Magistrate could have rejected that application and proceeded on the available evidence instead of dismissing the complaints. (¶¶ 5, 13)
Held
- The complainant had led its evidence, cross-examination in three complaints was adopted in the others, and the evidence was closed on 26.10.2017 with the cases listed for defence evidence, facts not specifically denied; neither the Magistrate nor the High Court considered whether the proviso to Section 256(1) enabled the matter to proceed without the complainant. Following Associated Cement, Section 256 deters dilatory tactics but imposes no duty to acquit when the complainant has already been examined; the dismissal was unjustified. (¶¶ 5, 11, 12, 13)
Result
Appeals allowed; Delhi High Court order dated 07.11.2019 and the Magistrate's order dated 25.01.2019 set aside; the eight complaints restored to their original numbers before the Metropolitan Magistrate, to proceed from the stage at which they were dismissed.