Supreme Court of India
S. RAMA KRISHNAversusS. RAMI REDDY (D) BY HIS LRS. & ORS.
- Citation
- 2008 INSC 543
- Decided
- 29 April 2008
- Disposal
- Case Allowed
- Bench
- S B SINHA
Holding
An order of acquittal passed by a magistrate under Section 256(1) CrPC, exercised after the complainant’s death and prolonged non‑appearance of his heirs, should not be interfered with by the High Court.
Summary
The appellant issued two cheques to the original complainant, who later died. A complaint under Section 138 read with Section 142 of the Negotiable Instruments Act was filed, and an application for substitution of the deceased complainant was made but remained pending. Because the legal heirs of the complainant were absent for many hearings over more than five years, the magistrate exercised his discretion under Section 256(1) of the CrPC and acquitted the appellant. The High Court set aside that acquittal, holding that the case should be decided on merits rather than technicalities. The Supreme Court held that the magistrate’s discretion under Section 256(1) was correctly exercised and that an order of acquittal should not ordinarily be interfered with; consequently, the High Court’s interference was erroneous. The appeal was allowed, restoring the magistrate’s acquittal.
Issues considered
- Whether the High Court can set aside an order of acquittal passed by a magistrate under Section 256(1) CrPC.
- Whether the magistrate’s discretion under Section 256(1) CrPC was properly exercised given the death of the complainant and the prolonged absence of his heirs.
- Whether the right to a speedy trial under Article 21 of the Constitution influences the exercise of discretion under Section 256(1).
Legislation cited
- Code of Criminal Procedure, 1973s. 256(1), s. 378(4)
- Negotiable Instruments Act, 1881s. 138, s. 142
Subjects
Cheque bounceSection 138 NI ActSection 256 CrPCAcquittalDiscretionary jurisdictionSpeedy trialCriminal procedureSubstitution of complainantHigh Court interference
Judgment
[2008) 6 S. C.R. 1236
A S. RAMA KRISHNA
v.
S. RAMI REDDY (D) BY HIS LRS. & ORS.
(Criminal Appeal No. 755 of 2008)
APRIL 29, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.] •(
Code of Criminal Procedure, 1973 - ss. 256 and 378 -
Criminal proceedings for dishonour of cheque - Acquittal of
c accused by magistrate in view of absence of the complainant
in the proceedings for a long period - High Court setting aside
acquittal - On appeal, held: Magistrate had rightly acquitted
the accused in exercise of its discretionary jurisdiction - High
Court was not right in interfering therewith in exercise of its
jurisdiction uls 378 - Speedy trial is fundamental right of the
D
accused - Orders passed by competent court of law and the
1'
provisions of Cr.PC. must be construed having regard to the
Constitutional Scheme and legal principles - Interpretation
of Statutes - Constitution of India, 1950 - Article 21 -
Negotiable Instruments Act, 1881- s. 138 rlw s. 142.
E
Proceedings u/s 138 r/w s. 142 of Negotiable
Instruments act, 1881 were initiated on the complaint of
the respondent. After death of the original complainant,
though application for substitution was filed, no order was
F passed in the application. As the legal heirs of the
complainant remained absent on the dates of hearing of "
the matter for a long period, the Magistrate acquitted the
appellant-accused in exercise of his jurisdiction uls 256
Cr.P.C. High court set aside the order of acquit1al holding
that the court should not have decided the case on
G
technicalities. However, High Court found that it was the
complainant's legal heirs who were interested in getting
the matter prosecuted. Hence the present appeal. ...
Allowing the appeal, the Court
H 1236
S. RAMA KRISHNA v. S. ~Ml REDDY (D) BY HIS 1237
LRS. & ORS.
HELD: 1.1 The provisions of Section 256 (1) Cr.P.C. A
mandate the Magistrate to acquit the accused unless for
some reason he thinks it proper to adjourn the hearing of
the case. If an exceptional course is to be adopted, it must
be spelt out. The discretion conferred upon the Magistrate,
however, must be exercised with great care and caution. B
The conduct of the complainant for the said purpose is of
>
immense significance. He cannot allow a case to remain
pending for an indefinite period. The matter remained
pending for more than five years. It was obligatory on the
part of the respondents to press their application for c
substitution. They did not file attendance of their
witnesses. The case was fixed for hearing. [Paras 8 and
10) [1241-A-B; 1240-F-G]
1.2 Appellant had been attending the court for a long
time, except on some dates when remained absent or was D
., otherwise represented by his Advocate. He attended the
court on not less than 20 occasions after the death of the
original complainant. If in the aforementioned situation,
the Magistrate exercised his discretionary jurisdiction, the
same, should not have been ·ordinarily interfered with. E
[Para 10) [1241-C-D]
2.1 The High Court was exercising its jurisdiction
under sub-Section (4) of Section 378 Cr.P.C .. The appeal
preferred by the respondents was against a judgment of
acquittal. The High Court should have, therefore, F
>
exercised its jurisdiction keeping in view the limited role
it had to play in the matter. The High Court failed to take
into consideration the fact that it was dealing with an
order of acquittal and, thus, the principle of law which was
required to be applied was that, if two views are possible, G
a judgment of acquittal should not ordinarily be interfered
with. [Paras 11and12] [1241-E, G-H]
o<(
2.2 The High Court itself had come to the finding that
the respondents were not interested in getting the matter
H
1238 SUPREME COURT REPORTS (2008] 6 S.C.R.
f
A prosecuted. Despite the same, it allowed their appeal,
opining that any tis between the parties should be decided
on merits rather than on technicalities. There exists a
distinction between a civil case and a criminal case.
Speedy trial is a fundamental right of an accused. The
B orders passed by the competent court of law as also the
provisions of Code of Criminal Procedure must be
construed having regard to the Constitutional scheme
and the legal principles in mind. [Para 12) [1241-F;
1242-A-B]
C CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 755 of 2008.
From the Order dated 30.8.2006 of the High Court of
Andhra Pradesh at Hyderabad in Criminal Appeal No. 1149/
2006.
D
Guntur Prabhakar for the Appellant.
Bharathi Reddy and T.V. Ratnam for the Respondents.
The Judgment of the Court was delivered by
E S.B. SINHA, J. 1. Leave granted.
2. Appellant issued two cheques for a sum of Rs. 5,00,000/
-(Rupees Five lakhs) each in favour of the original complainant
- i.e. S. Rami Reddy (since deceased) on or about 9.1.2001
and 10.1.2001.
F
The said cheques were deposited in a bank for collection
on or about 25.2.2001. They were dishonoured.
Rami Reddy filed a complaint petition in the Court of
Additional Judicial Magistrate First Class, Kurnool purported
G to be under Section 138 read with Section 142 of the Negotiable
Instruments Act, 1881 (for short 'the Act') on 6.6.2001. It was
registered as C.C. No. 368 of 2001. Rami Reddy expired on
28.10.2003. Respondents herein filed an application for
substitution of their names in place of the said Rami Reddy on
H 22.12.2003. Appellant filed an objection thereto. No order was
-<
S. RAMA KRISHNA v. S. RAMI REDDY (D) BY HIS 1239
)
LRS. & ORS. [S.B. SINHA, J_J
passed on the said application. The-counsel appearing on behalf A-
of the complainant started-representing the proposed heirs of
the said Rami Reddy. It appears that on or about 18.4:2005 till
23.1.2006, i.e., on- :14 dates nobody represented the
complainant. · ·· -- . -
3. On 23.1.2006, noticing that the respondents had not 8
been attending the court for a long time, the appellant was
acquitted by the learned Magistrate-in purported exercise of
his. jurisdiction under Sectiol) 256 of, the Code.rpf Criminal
Procedure. An appeal was preferred thereagainst.before.the
High Court of Andhra Pradesh questioriing"the validity of the c-
order dated 23.1.2006.
By reason of the impugned judgment, a learned single
judge of the High Court set aside the said judgment of acquittal
holding:
D
,. "A perusal of the docket order passed by the Court below,
coupled with the extract of diary maintained by the Court
below, show that the matter has undergone several
adjournments due to the absence of the appellants only,
and ultimately, on 23.1.2006 the trial court passed the E
impugned order. From this it is clear that the appellants
are not interested in getting the matter prosecuted.
However, as this Court has consistently taken the view
that any lis between the parties shall be decided on merits
rather than on technicalities, this Court is of the view that F
the appellants may be given one more opportunity to get
the matter prosecuted."
Appellant is, thus, before us.
4. Mr. Guntur Prabhakar, learned counsel appearing on
behalf of the appellant, would submit that the High Court had G
committed a manifest error in passing the impugned judgment
insofar as it failed to take into consideration that since the
complainant remained absent for a long time, there was no
justification for setting aside the order of acquittal passed by
H
1240 SUPREMF COURT REPORTS [2008] 6 S.C.R.
A the learned Magistrate.
5. The learned counsel appearing on behcl'lf of the
respondents, however, supported the _impugned judgment.
6. Admittedly, the respondents themselves did not seriously
B press their applications for their substitution in piace of the
original complainant. '·
7. Section 256 of the Code. of Criminal Procedure
empowers a Magistrate to pass an .order of acquittal on non-
appearance or death of the complainant.
c
rhe complaint petition was filed in the year 2001. Rami
Reddy died in 2003. A large number of dates were fixed for
hearing of the case. Although, on some dates, the respondents
were either present in court in person or were represented by
their Advocate, but as noticed hereinbefore, continuously for
0
about 15 dates fixed for hearing, they remained absent.
The ingredients of Section 256(1) are: (i) that summons
must have been issued on a complaint, (ii) the Magistrate should
be of the opinion that for some reasons, it is not proper to adjourn
E the hearing of the case to some other date; and (iii) the date on
which the order under Section 256(1) can be passed is the day
appointed for appearance of the accused or any day subsequent
thereto, to which the hearing of the case has been adjourned.
It is not a case where the proviso appended to sub-Section
F (1) of Section 256 of the Code was applicable. •
8. The matter remained pending for more than five years.
It was obligatory on the part of the respondents to press their
application for substitution. They did not file attendance of their
G witnesses. The case was fixed for hearing.
9. The learned Magistrate in terms of sub-Section (1) of
Section 256 exercises wide jurisdiction. Although an order of
acquittal is of immense significance, there cannot be any doubt
or dispute whatsoever that the discretion in this case had been
•-I properly exercised by the learned Magistrate.
S. RAMA KRISHNA v. S RAMI RED°L)Y:(tJfBY HIS 1241 ' .
LRS. & ORS. [S.B. SINHA, J.]
· 10. The provisions of SectionJ2'5S(1) rnahdate the A
Magistrate to acquit the accused unle'sst'fot: some reason ht=i
thinks it proper to adjourn the 11earir'f§ tof"the case. If ah
exceptional course is to be adopted, it fflu%t'f>~ spelt out. The
discretion conferred upon the learned·Ma€Ji~tr'ate, h·owever,'must
be exercised with great care and caution. ithe conduct of the B
complainapt fo.~ t.he said p\Jrpose i~ ofi}m.IJ1~~se. significance.
He cannot allow a case to .
remain
•.
,~ -
pe.o.qiqg.
·~.':J•1,),
for
,..·"
_._.,,.~
an inde.fini~e
. <''
period. Appellant had been attending the court for a long time,
except ot'I some 'dates where when remaini:!d absent or was
otherwise represented by his Advocate. ' •· ·· ·· c.
He had tb•-remain present in court. He attended the court
on not less than 20 occasions after the death of the original
complainant. If in the aforementioned situation, the learned
Magistrate exercised his discretionary jurisdiction, the same,
in our opinion, should not have been ordinarily interfered with. D
11. The High Court was exercising its jurisdiction under
sub-Section (4) of Section 378 of the Code of Criminal
Procedure. The appeal preferred by the respondents was
against a judgment of acquittal. The High Court should have,
therefore, exercised its jurisdiction keeping in view the limited E
role it had to play in the matter.
12. The High Court itself had come to the finding that the
respondents were not interested in getting the matter
)
prosecuted. Despite the same, it allowed their appeal, opining F
.. that any lis between the parties should be decided on merits
rather than on technicalities. On what basis such a statement of\
law was made is not known. No precedent was cited; no reason
has been assigned.
The High Court failed to take into consideration the fact G
that it was dealing with an order of acquittal and, thus, the
·~ principle of law which was required to be applied was that, if
two views are possible, a judgment of acquittal should not
ordinarily be interfered with.
H
1242 SUPREME COURT REPORTS [2008] 6 S.C.R.
A There exists a distinction between a civil case and a
criminal case. Speedy trial is a fundamental right of an accused.
The orders passed by the competent court of law as also the
provisions of Code of Criminal Procedure must be construed
having regard to the Constitutional scheme and the legal
B principles in mind.
13. The High Court, in our opinion, therefore, misdirected
itself in passing the impugned judgment.
It can therefore not be sustained. We set aside the order
c of the High Court accordingly. The Appeal is allowed.
K.K.T. Appeal allowed.
..
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