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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 657-664 OF 2023

(Arising out of SLP (Criminal) Nos.867-874 of 2020)

M/s. BLS INFRASTRUCTURE LIMITED … Appellant

Versus

M/s. RAJWANT SINGH & OTHERS … Respondents

JUDGMENT

MANOJ MISRA, J.

1. Leave granted.

2. These appeals by way of special leave petitions are directed

against the judgment and order dated 07.11.2019 passed by

Delhi High Court dismissing Crl.L.P. Nos.315 to 322 of 2019 filed

by the appellant against the order of Metropolitan Magistrate-04

(N.I. Act)/South East, Saket Courts, New Delhi (for short “learned

Magistrate”) dated 25.01.2019 dismissing Criminal Complaints

No.621744/16,
Signature Not Verified
1718/16, 1276/16, 1277/16, 621743/16,
Digitally signed by
Charanjeet Kaur
Date: 2023.03.01
17:00:34 IST
Reason:
621742/16, 12742/17 and 12744/17 for non-appearance of the

complainant (the appellant herein).

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3. The short question that arises for our consideration in

these appeals is whether in the facts of the case, the learned

Magistrate was justified in dismissing the criminal complaints for

non-appearance of the complainant even though the statement of

the complainant had been recorded and, vide order of the learned

Magistrate dated 26.10.2017, the complainant’s evidence was

closed with a direction to list the matter for recording of defence

evidence as also for consideration of application under 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

apposite to give a brief sketch of the facts giving rise to these

appeals.

5. The appellant in all filed eight complaints against the

respondents under Section 138 of the Negotiable Instruments

Act, 1881. Three complaints were filed in the year 2011, three in

the year 2013 and remaining two in the year 2017. Out of the

aforesaid eight complaints, in Complaint Case Nos.621742/16,

621743/16 and 621744/16 the complainant was subjected to

cross-examination. On 26.10.2017, the learned counsel for the

accused made a statement before the learned Magistrate that the

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cross-examination of CW-1 (the complainant), as made in the

above three cases, shall be adopted in the remaining complaints.

On basis of the above statement, the complainant’s evidence was

closed and the cases were directed to be listed for recording of

defence evidence. At that stage, an application was filed by the

complainant under Section 311 of the Code for summoning

certain witnesses. While the matter was pending at that stage,

according to the appellant, appellant’s counsel misled the

appellant into a belief that appellant’s presence is not required as

a settlement was being negotiated. It is the case of the appellant

that in these circumstances, the appellant did not appear and

ultimately the complaints were dismissed for non-appearance

vide order dated 25.01.2019.

6. The order dismissing the complaints for non-prosecution

was subjected to challenge before the Delhi High Court through

eight separate petitions which came to be dismissed by a common

order dated 07.11.2019 impugned in these appeals.

7. We have heard Shri Maninder Singh, learned Senior

Advocate appearing for the appellant; and Mr. Samrat Nigam,

learned Advocate for the respondents.

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8. The learned counsel for the appellant submitted that the

learned Magistrate while dismissing the complaints for non-

prosecution lost sight of the proviso to sub-section (1) of Section

256 of the Code. It is submitted that the said proviso enables the

Magistrate to dispense with the attendance of the complainant

and proceed with the case where the complainant is represented

by a pleader or by the officer conducting the prosecution or where

the Magistrate is of the opinion that the personal attendance of

the complainant is not necessary.

It is submitted that as the statement of the complainant

had been recorded and the complainant was also subjected to

cross-examination, there existed admissible evidence on record in

support of the complaint case. In these circumstances, even if the

complainant was absent, the learned Magistrate could have

proceeded to decide the case on merits. Thus, the order of the

learned Magistrate stands vitiated for having failed to notice that

there existed evidence on record enabling the matter to proceed

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

Court also failed to notice the aforesaid aspect; consequently, the

order(s) of the High Court as well as of the learned Magistrate are

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liable to be set-aside and the matter be restored to the stage at

which the learned Magistrate had dismissed the complaint.

In support of his submissions, the learned counsel for the

appellant placed reliance on the decisions of this Court in

Associated Cement Co. Ltd. v. Keshvanand1; S. Anand v.

Vasumathi Chandrasekar2; and, S. Rama Krishna v. S. Rami

Reddy (Dead) By His LRs & Others3.

9. Per contra, the learned counsel for the respondent(s)

submitted that sub-section (1) of Section 256 of the Code

mandates the Magistrate to acquit the accused if, 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. It is submitted that since it is not

in dispute that the complainant had filed an application under

section 311 of the Code and the complainant remained absent

from the proceedings, the learned Magistrate was justified in

dismissing the complaint(s) for non-appearance of the

complainant. It has also been urged that if there is any technical

defect in dismissing the complaint(s) for non-appearance of the

1
(1998) 1 SCC 687
2
(2008) 4 SCC 67
3
(2008) 5 SCC 535
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complainant, the same be treated as an order of acquittal as per

provisions of sub-section (1) of Section 256 of the Code.

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 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.

Provided that where the complainant is represented by a

pleader or by the officer conducting the prosecution or where the
Magistrate is of 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.”

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 may arise where

complainant’s/prosecution’s evidence has been recorded and to

decide the case on merits, complainant’s presence is not

necessary.
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11. In the case of S. Anand (supra), addressing a situation

where the complainant was absent but had already examined his

witnesses, this Court observed as follows:

“12. Section 256 of the Code provides for disposal of a

complaint in default. It entails in 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 paragraph 15, it was held thus:

“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 required to pass a judgment on
merit of the matter.”

12. In Associated Cement Co. Ltd. (supra), the purpose of

inserting a provision like Section 256 of the Code was discussed

and in light thereof, in paragraph 16, it was observed as under:

“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 set the law in motion through his complaint. An
accused who is per force 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.”
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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 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.

13. 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 Paragraph 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-examination was sought in other cases.

Rather, CW-1’s cross-examination in the above three complaint

cases was adopted. There appears 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

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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.

Further, if the complainant had not appeared to press the

application under Section 311 of the Code, the learned Magistrate

could have rejected the application under Section 311 of the Code

and proceeded with the case on basis of the available evidence.

We are, therefore, of the considered view that the learned

Magistrate was not justified in straight away dismissing the

complaint(s) and ordering acquittal of the accused on mere non-

appearance of the complainant. The High Court too failed to take

notice of the aforesaid aspects. Thus, the orders impugned are

liable to be set aside.

14. For the reasons above, the order(s) of the High Court as

well as of the learned Magistrate are set-aside. The proceedings

shall stand restored to their original number(s) on the file of the

learned Magistrate and the prosecution shall now proceed from

the stage where it was when the order of acquittal/dismissal of

the complaint(s) was passed.

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15. The appeals are allowed in the aforesaid terms.

......................................J.
(Sudhanshu Dhulia)

......................................J.
(Manoj Misra)
New Delhi;
March 01, 2023