Calcutta High Court: A single-judge bench comprising of Shampa Dutt (Paul),* J., held that there has been a serious miscarriage of justice in this case and set aside the impugned order passed by the Metropolitan Magistrate, acquitting the accused under Section 256 of the CrPC. The Court restored the Complaint case to its own file and directed the trial court to continue the proceedings against the accused from the stage before the dismissal and dispose of the case within six months.
In the instant matter, the present appeal is preferred against an order dated 06-08-2016 passed by the Metropolitan Magistrate, had dismissed a case under Section 256 of the CrPC and acquitted the accused.
The appellant is a public organization dealing with public funds. The respondents 3 to 5 are the partners responsible for the day-to-day administration of the partnership firm, Visual Graph. The appellant had sanctioned and disbursed loans to the respondents, and when the loan payments were not honored, the appellant issued a legal notice under Section 138 of the Negotiable Instruments Act, 1881.
However, due to certain unforeseen circumstances affecting the appellant’s legal counsel, the case was dismissed on 06-08-2016. The appellant subsequently filed a revisional application, which was also dismissed. The appellant now seeks to restore the complaint case.
The appellant contended that the trial judge erred in law by acquitting the accused without giving the appellant a fair opportunity to present their case. On the other hand, the State supported the magistrate’s decision to dismiss the case and acquit the accused.
On reviewing the materials on record, the Court observed that the complaint case was filed on 28-09-2008, and the complainant had presented evidence and documents. The complainant was present on most hearing dates, except for a few occasions. The case continued for eight years until 04-07-2016, when the complainant was absent, and subsequently, the case was dismissed on 06-08-2016 under Section 256 of the CrPC.
The Court examined Section 256 of the CrPC which deals with the non-appearance or death of the complainant and observed that if the complainant’s presence was not necessary for the case, the magistrate could dispense with it and proceed with the case.
The Court cited BLS Infrastructure Ltd. v. Rajwant Singh, (2023) 4 SCC 326, and emphasized that when the prosecution had already examined its witnesses, an order of acquittal should not be passed merely on the complainant’s non-appearance.
Considering the facts on record and the judgment in BLS Infrastructure Ltd. (Supra), the Court held that there has been a serious miscarriage of justice. The Court set aside the order dated 06-08-2016 and restored the complaint case to its original file. The Court directed the trial court to proceed against the accused from the stage before dismissal and to dispose of the case within six months, in accordance with the law. The appeal is allowed.
[West Bengal Financial Corpn. v. State of W.B., 2023 SCC OnLine Cal 2652, order dated 06-09-2023]
*Judgment by Justice Shampa Dutt (Paul)
Advocates who appeared in this case :
Ms. Jharna Biswas, Counsel for the Appellant
Mr. Madhusudan Sur, ld. APP Mr. Manoranjan Mahata, Counsel for the State
Mr. Santanu Talukdar, Counsel for the Respondent