Supreme Court Reinstates Complaints Dismissed for Non-Appearance in Cheque Bounce Cases: M/s. BLS Infrastructure Limited vs. M/s. Rajwant Singh & Others (2023) INSC 177 (01 March 2023)

Date of the Judgment: 01 March 2023
Citation: (2023) INSC 177
Judges: Justice Sudhanshu Dhulia and Justice Manoj Misra
Can a criminal complaint be dismissed for the complainant’s absence even after their evidence has been recorded? The Supreme Court of India recently addressed this crucial question in a case concerning complaints filed under Section 138 of the Negotiable Instruments Act, 1881. The court clarified that a Magistrate cannot dismiss a complaint solely for the complainant’s non-appearance if the complainant’s evidence has already been recorded. The judgment was delivered by a two-judge bench comprising Justice Sudhanshu Dhulia and Justice Manoj Misra, with Justice Manoj Misra authoring the opinion.

Case Background

M/s. BLS Infrastructure Limited (the appellant) filed eight criminal complaints against M/s. Rajwant Singh & Others (the respondents) under Section 138 of the Negotiable Instruments Act, 1881, for cheque bounce. Three complaints were filed in 2011, three in 2013, and the remaining two in 2017. In three of the complaints, the complainant’s evidence was recorded and cross-examined. The cross-examination was adopted in the remaining complaints. Subsequently, the complainant filed an application under Section 311 of the Code of Criminal Procedure, 1973, to summon additional witnesses. While this application was pending, the complainant did not appear in court, allegedly due to a misunderstanding caused by their counsel. Consequently, the Metropolitan Magistrate dismissed all the complaints for non-appearance of the complainant on 25.01.2019.

Timeline

Course of Proceedings

The Metropolitan Magistrate dismissed the complaints citing the non-appearance of the complainant, despite the fact that the complainant’s evidence had already been recorded. The appellant then challenged this dismissal before the Delhi High Court, which also dismissed the petitions on 07.11.2019. The High Court upheld the Magistrate’s decision. Aggrieved by the High Court’s order, the appellant approached the Supreme Court of India.

Legal Framework

The core legal provision in question is Section 256 of the Code of Criminal Procedure, 1973, which deals with the non-appearance of a complainant. The section states:

“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.”

The proviso to sub-section (1) of Section 256 of the Code of Criminal Procedure, 1973 allows the Magistrate to dispense with the complainant’s attendance and proceed with the case if the complainant is represented by a pleader, an officer conducting the prosecution, or if the Magistrate believes the complainant’s personal attendance is unnecessary.

Arguments

Appellant’s Arguments:

• The appellant’s counsel argued that the Magistrate overlooked the proviso to sub-section (1) of Section 256 of the Code of Criminal Procedure, 1973.
• The proviso allows the Magistrate to proceed with the case if the complainant is represented by a pleader or if their personal attendance is not necessary.
• The appellant had already recorded their statement and undergone cross-examination. Thus, there was sufficient evidence on record to proceed with the case even in the absence of the complainant.
• The appellant relied on the judgments in Associated Cement Co. Ltd. v. Keshvanand [(1998) 1 SCC 687], S. Anand v. Vasumathi Chandrasekar [(2008) 4 SCC 673], and S. Rama Krishna v. S. Rami Reddy (Dead) By His LRs & Others [(2008) 5 SCC 535], to support the argument that the case should not have been dismissed for non-appearance of the complainant after evidence was recorded.

Respondent’s Arguments:

• The respondent’s counsel submitted that Section 256(1) of the Code of Criminal Procedure, 1973, mandates the Magistrate to acquit the accused if the complainant does not appear on the appointed day.
• Since the complainant was absent, the Magistrate was justified in dismissing the complaint(s).
• Even if the dismissal was technically flawed, it should be treated as an order of acquittal under Section 256(1) of the Code of Criminal Procedure, 1973.

Submissions Table

Issues Framed by the Supreme Court

The core issue before the Supreme Court was:

1. Whether the Magistrate was justified in dismissing the criminal complaints for non-appearance of the complainant, even though the complainant’s statement had been recorded and the complainant’s evidence was closed, with a pending application under Section 311 of the Code of Criminal Procedure, 1973.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• The Supreme Court relied on Associated Cement Co. Ltd. v. Keshvanand [(1998) 1 SCC 687]* to highlight that Section 256 of the Code of Criminal Procedure, 1973, is designed to prevent delay by complainants, not to mandate acquittal when the complainant’s evidence is already recorded.
• The Supreme Court followed S. Anand v. Vasumathi Chandrasekar [(2008) 4 SCC 673]* to emphasize that once the prosecution has presented its case and the accused has been examined, the court must decide the case on its merits.
• The Supreme Court reiterated the same principle by following S. Rama Krishna v. S. Rami Reddy (Dead) By His LRs & Others [(2008) 5 SCC 535]*.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that the complainant’s evidence had already been recorded and cross-examined. The court emphasized that the proviso to Section 256(1) of the Code of Criminal Procedure, 1973, allows the Magistrate to dispense with the complainant’s attendance when their evidence is on record. The court also noted that the Magistrate could have rejected the application under Section 311 of the Code of Criminal Procedure, 1973, and proceeded with the case based on the available evidence.

The Supreme Court’s reasoning was based on the interpretation of Section 256 of the Code of Criminal Procedure, 1973, and the precedents set in previous cases. The court emphasized that the law should be interpreted to ensure that cases are decided on their merits, especially when the complainant’s evidence has already been recorded. The court rejected the argument that the dismissal should be treated as an acquittal, as it was not a decision on the merits of the case.

The Supreme Court observed that the Magistrate should have either rejected the application under Section 311 of the Code of Criminal Procedure, 1973, and proceeded with the case based on the available evidence, or adjourned the matter to another date. The court also observed that the High Court also failed to consider the proviso to sub-section (1) of Section 256 of the Code of Criminal Procedure, 1973.

The Supreme Court quoted from the judgment in S. Anand v. Vasumathi Chandrasekar [(2008) 4 SCC 673], stating: “… 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.”

The Court also quoted from the judgment in Associated Cement Co. Ltd. v. Keshvanand [(1998) 1 SCC 687], stating: “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.”

The court further observed, “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.”

There were no dissenting opinions in this case, it was a unanimous decision by the two-judge bench.

Key Takeaways

• A Magistrate cannot dismiss a criminal complaint for the complainant’s absence if the complainant’s evidence has already been recorded.
• The proviso to Section 256(1) of the Code of Criminal Procedure, 1973, allows the Magistrate to dispense with the complainant’s attendance in such cases.
• The Magistrate should either proceed with the case based on the available evidence or adjourn the matter to another date.
• The case should be decided on merits, not dismissed for non-appearance when evidence is on record.

Directions

The Supreme Court set aside the orders of the High Court and the Magistrate. The proceedings were restored to their original numbers, and the Magistrate was directed to proceed from the stage where the complaint was dismissed.

Development of Law

The ratio decidendi of this case is that a Magistrate cannot dismiss a criminal complaint for the complainant’s absence if the complainant’s evidence has already been recorded. This judgment reinforces the principle that cases should be decided on their merits and not dismissed on technical grounds, especially when the evidence is already on record. This clarifies the interpretation of Section 256 of the Code of Criminal Procedure, 1973, and ensures that the proviso is given due consideration.

Conclusion

The Supreme Court’s judgment in M/s. BLS Infrastructure Limited vs. M/s. Rajwant Singh & Others clarifies that a criminal complaint cannot be dismissed solely for the complainant’s non-appearance if the complainant’s evidence has already been recorded. The court emphasized the importance of deciding cases on their merits and ensuring that the proviso to Section 256(1) of the Code of Criminal Procedure, 1973, is properly applied. This judgment provides crucial guidance for Magistrates and ensures that complainants are not penalized for non-appearance when their evidence has already been presented.