M/S. BLS INFRASTRUCTURE LIMITED versus M/S. RAJWANT SINGH & OTHERS on 1 March 2023

1. Leave granted.

2. These appeals by way of special leave petitions are directedagainst the judgment and order dated 07.11.2019 passed by Delhi HighCourt dismissing Crl.L.P. Nos.315 to 322 of 2019 filed by the appellantagainst the order of Metropolitan Magistrate-04 (N.I. Act)/South East,Saket Courts, New Delhi (for short “learned Magistrate”) dated25.01.2019 dismissing Criminal Complaints No.621744/16, 1718/16, 1276/16, 1277/16, 621743/16, 621742/16, 12742/17 and 12744/17 for non-appearance of the complainant (the appellant herein).

3. The short question that arises for our consideration in theseappeals is whether in the facts of the case, the learned Magistrate wasjustified in dismissing the criminal complaints for non-appearance of thecomplainant even though the statement of the complainant had beenrecorded and, vide order of the learned Magistrate dated 26.10.2017,the complainant’s evidence was closed with a direction to list the matterfor recording of defence evidence as also for consideration of applicationunder Section 311 of the Code of Criminal Procedure, 1973 (for short“the Code”) filed by the complainant.

4. To appropriately address the aforesaid issue, it would be appositeto give a brief sketch of the facts giving rise to these appeals.

5. The appellant in all filed eight complaints against the respondentsunder Section 138 of the Negotiable Instruments Act, 1881. Threecomplaints were filed in the year 2011, three in the year 2013 andremaining two in the year 2017. Out of the aforesaid eight complaints, inComplaint Case Nos.621742/16, 621743/16 and 621744/16 thecomplainant was subjected to cross-examination. On 26.10.2017, thelearned counsel for the accused made a statement before the learnedMagistrate that the cross-examination of CW-1 (the complainant), asmade in the above three cases, shall be adopted in the remainingcomplaints. On basis of the above statement, the complainant’s evidencewas closed and the cases were directed to be listed for recording ofdefence evidence. At that stage, an application was filed by the A

B

C

D

E

F

G

H

Acomplainant under Section 311 of the Code for summoning certainwitnesses. While the matter was pending at that stage, according to theappellant, appellant’s counsel misled the appellant into a belief thatappellant’s presence is not required as a settlement was being negotiated.It is the case of the appellant that in these circumstances, the appellantdid not appear and ultimately the complaints were dismissed for non-Bappearance vide order dated 25.01.2019.

6. The order dismissing the complaints for non-prosecution wassubjected to challenge before the Delhi High Court through eight separatepetitions which came to be dismissed by a common order dated 07.11.2019impugned in these appeals.C7. We have heard Shri Maninder Singh, learned Senior Advocateappearing for the appellant; and Mr. Samrat Nigam, learned Advocatefor the respondents.

8. The learned counsel for the appellant submitted that the learnedDMagistrate while dismissing the complaints for non-prosecution lost sightof the proviso to sub-section (1) of Section 256 of the Code. It is submittedthat the said proviso enables the Magistrate to dispense with theattendance of the complainant and proceed with the case where thecomplainant is represented by a pleader or by the officer conducting theprosecution or where the Magistrate is of the opinion that the personalEattendance of the complainant is not necessary.

It is submitted that as the statement of the complainant had beenrecorded and the complainant was also subjected to cross-examination,there existed admissible evidence on record in support of the complaintcase. In these circumstances, even if the complainant was absent, theFlearned Magistrate could have proceeded to decide the case on merits.Thus, the order of the learned Magistrate stands vitiated for having failedto notice that there existed evidence on record enabling the matter toproceed even in absence of the complainant under the proviso to sub-section (1) of Section 256 of the Code. It is urged that the High CourtGalso failed to notice the aforesaid aspect; consequently, the order(s) ofthe High Court as well as of the learned Magistrate are liable to be set-aside and the matter be restored to the stage at which the learnedMagistrate had dismissed the complaint.

In support of his submissions, the learned counsel for the appellantplaced reliance on the decisions of this Court in Associated Cement Co.H

Ltd. v. Keshvanand[1]; S. Anand v. Vasumathi Chandrasekar[2]; and,S. Rama Krishna v. S. Rami Reddy (Dead) By His LRs & Others[3].

9. Per contra, the learned counsel for the respondent(s) submittedthat sub-section (1) of Section 256 of the Code mandates the Magistrateto acquit the accused if, on the day appointed for the appearance of theaccused or any day subsequent thereto, to which the hearing may beadjourned, the complainant does not appear. It is submitted that since itis not in dispute that the complainant had filed an application under section311 of the Code and the complainant remained absent from theproceedings, the learned Magistrate was justified in dismissing thecomplaint(s) for non-appearance of the complainant. It has also beenurged that if there is any technical defect in dismissing the complaint(s)for non-appearance of the complainant, the same be treated as an orderof acquittal as per provisions of sub-section (1) of Section 256 of theCode.

10. Having noticed the rival submissions, before we proceed further,it would be useful to notice the provisions of Section 256 of the Code,which are reproduced below:

“256. Non-appearance or death of complainant.—(1) If thesummons has been issued on complaint, and on the day appointedfor the appearance of the accused, or any day subsequent theretoto which the hearing may be adjourned, the complainant does notappear, the Magistrate shall, notwithstanding anything hereinbeforecontained, acquit the accused, unless for some reason he thinks itproper to adjourn the hearing of the case to some other day.

Provided that where the complainant is represented by apleader or by the officer conducting the prosecution or where theMagistrate is of opinion that the personal attendance of thecomplainant is not necessary, the Magistrate may dispense withhis attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as maybe, apply also to cases where the non-appearance of thecomplainant is due to his death.”

1 (1998) 1 SCC 687

2 (2008) 4 SCC 67

3 (2008) 5 SCC 535

A

B

C

DE

F

G

H

AA plain reading of the proviso to sub-section (1) of Section 256would indicate that where the Magistrate is satisfied that the personalattendance of the complainant is not necessary, he can dispense withthe attendance of the complainant and proceed with the case. Such asituation may arise where complainant’s/prosecution’s evidence has beenrecorded and to decide the case on merits, complainant’s presence isBnot necessary.

A

11. In the case of S. Anand (supra), addressing a situation wherethe complainant was absent but had already examined his witnesses,thisCourt observed as follows:C“12. Section 256 of the Code provides for disposal of a complaint

“12. Section 256 of the Code provides for disposal of a complaintin default. It entails in acquittal. But, the question which arises forconsideration is as to whether the said provision could have beenresorted to in the facts of the case as the witnesses on behalf ofthe complainant have already been examined.

13. The date was fixed for examining the defence witnesses. Theappellant could have examined witnesses, if he wanted to do thesame. In that case, the appearance of the complainant was notnecessary. It was for her to cross-examine the witnesses examinedon behalf of the defence.”

D

EAfter observing as above, in paragraph 15, it was held thus:

“15. … when the prosecution has closed its case and the accusedhas been examined under Section 311 of the Code of CriminalProcedure, the Court was required to pass a judgment on merit ofthe matter.”

F12. In Associated Cement Co. Ltd.(supra), the purpose ofinserting a provision like Section 256 of the Code was discussed and inlight thereof, in paragraph 16, it was observed as under:

“16. What was the purpose of including a provision like Section247 in the old Code (or Section 256 in the new Code). It affordsGsome deterrence against dilatory tactics on the part of acomplainant who set the law in motion through his complaint. Anaccused who is per force to attend the court on all posting dayscan be put to much harassment by a complainant if he does notturn up to the court on occasions when his presence is necessary.

H

The section, therefore, affords protection to an accused againstsuch tactics of the complainant. But that does not mean if thecomplainant is absent, the court has a duty to acquit the accusedin invitum.”

After observing as above, it was held that where the complainanthad already been examined as a witness in the case, it would not beappropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set-aside and it was directed that the prosecution would proceed from thestage where it reached before the order of acquittal was passed.

13. In the instant case, we notice that there is a specific avermentin the Special Leave Petition(s) that the appellant had led its evidence inthe case and thereafter had moved an application under Section 311 ofthe Code to summon and examine further witnesses. In Paragraph 5(u),it is stated that the trial court as well as the High Court did not take intoconsideration that the complainant’s cross-examination had been over inComplaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW-1’s cross-examinationin the above three complaint cases was adopted. There appears nospecific denial of the aforesaid factual position. However, we find thatneither the High Court nor the learned Magistrate has taken notice ofthe aforesaid position. Both the courts below thus failed to considerwhether in the facts of the case under the proviso to sub-section (1) ofSection 256, the court could proceed with the matter after dispensingwith the attendance of the complainant.

Further, if the complainant had not appeared to press the applicationunder Section 311 of the Code, the learned Magistrate could have rejectedthe application under Section 311 of the Code and proceeded with thecase on basis of the available evidence. We are, therefore, of theconsidered view that the learned Magistrate was not justified in straightaway dismissing the complaint(s) and ordering acquittal of the accusedon mere non-appearance of the complainant. The High Court too failedto take notice of the aforesaid aspects. Thus, the orders impugned areliable to be set aside.

14. For the reasons above, the order(s) of the High Court as wellas of the learned Magistrate are set-aside. The proceedings shall standrestored to their original number(s) on the file of the learned Magistrate A

B

C

D

E

F

G

H

Aand the prosecution shall now proceed from the stage where it waswhen the order of acquittal/dismissal of the complaint(s) was passed.

15. The appeals are allowed in the aforesaid terms.

B

Nidhi Jain

Appeals allowed.

C

D

E

F

G

H