Not proper to acquit accused for mere non-appearance of complainant who is already examined: SC

It was contended that the High Court had upheld the trial court’s order which had acquitted an accused for non-appearance of the complainant who was already examined

It would not be appropriate for a court to pass an order of acquittal when a complainant is already examined as a witness, but fails to to appear before the court, the Supreme Court has said.

In the instant case, the complainant had filed 8 complaints against the accused under section 138 of the Negotiable Instruments Act. The statement of the complainant had been examined and evidence was closed with a direction to list the matter for recording of defence evidence and also consideration of application under Section 311 of the Code of Criminal Procedure 1973. The Magistrate Court had however dismissed the criminal complaints for non-appearance of the complainant. This order was upheld by the Delhi High Court, following which the Supreme Court was moved.

In the appeal, it was convened that as the statement of the complaint had been recorded and the complainant was subject to cross-examination, there existed admissible evidence on record in support of the complaint case. Even if the complainant was absent the Magistrate could have proceeded to decide on the casein its merits, the Supreme Court was told.

While citing the decisions in the Associated Cement Co. Ltd. v. Keshvanand (1998) 1 SCC 687, the bench of Justices Sudhanshu Dhulia and Manoj Misra said, " 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."

The trial court and High Court did not take into consideration that the complainant's cross-examination was already done, the Bench noted. Both coats this 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, the Supreme Court said.

"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," the Bench noted.