A judgement from S.C.in sec 138 of Cr.P.C.

Judgment: [Arising out of SLP (Crl.) No. 3772 of 2007]S.B. Sinha, J.- Leave granted
Appellant was being prosecuted in the Court of Metropolitan Magistrate, Saidapet, Chennai for alleged commission of an offence under Section 138 of the Negotiable Instruments Act (for short the Act ) on the basis of a complaint petition filed by the respondent herein.
3. In the said proceedings, witnesses on behalf of the prosecution had been examined. Complainant closed her case. A date was fixed for examination of the defence witness and argument on 10.04.2006. However, the appellant filed an application for cross-examination of the complainant herself which was rejected. A revision application was filed thereagainst in the Court of the Sessions Judge.
In the said revision application, no order of stay was passed. Whereas the appellant had continuously remained present before the Trial Judge, the complainant remained absent.
4. On or about 18.04.2006, the appellant filed an application for his acquittal on the ground of absence of the complainant. By an order dated 24.04.2006, the learned Metropolitan Magistrate acquitted the accused under Section 256(1) of the Code of Criminal Procedure stating:
Complainant absent. No representation for several hearings. Accused present. Petition u/s 256(1) Cr. P.C. is allowed. Complainant continuously absent from the hearing date 3.3.05. Hence, Complainant called three times. Neither the complainant nor his counsel represent before the Court till 5.30 p.m. CW1 examined. Hence Accused is acquitted u/s 256(1) of Cr.P.C.
5. An appeal was preferred thereagainst before the High Court. The same was allowed relying on or on the basis of a decision of this Court in Associated Cement Co. Ltd. v. Keshvanand [(1998) 1 SCC 687 : AIR 1998 SC 536].
6. We may, at the outset, notice that before passing the impugned order, the High Court did not choose to serve notice upon the appellant opining that no useful purpose would be served in keeping the appeal pending and one G. Vinodkumar was appointed as a legal aid counsel. Aggrieved thereby, the appellant is before us.
7. It was submitted by Mr. Anand, appearing in person, that the complainant having remained absent for more than one year, the High Court ought not to have interfered with the discretionary jurisdiction exercised by the learned Metropolitan Magistrate, particularly when he had been appearing in person and the complainant not only executed a power of attorney in favour of another, a lawyer was also appointed.
Mr. Anand would submit that it was obligatory on the part of the advocate who is an agent of his client to appear on the dates of hearing, more so when an accused had been appearing in person and remained present in court for all the days of hearing. In any event, it was urged, the High Court committed a serious error in disposing of the appeal only upon hearing a legal aid counsel and even the submissions made by him had not been noticed.
8. Mr. A. Regunathan, learned senior counsel appearing on behalf of the respondent, however, submitted that in view of the fact that the matter was adjourned for examination of DWs, the learned Magistrate could not have exercised its jurisdiction under Section 256 of the Code of Criminal Procedure.
9. Chapter XX of the Code of Criminal Procedure deals with trial of summons cases by Magistrates. Section 256 of the Code reads as under:
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.
10. 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 complainant have already been examined.
11. The date was fixed for examining the defence witnesses. 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.
12. The accused was entitled to file an application under Section 311 of the Code of Criminal Procedure. Such an application was required to be considered and disposed of by the learned Magistrate. We have noticed hereinbefore that the complainant did not examine herself as a witness. She was sought to be summoned again for cross-examination. The said prayer has not yet been allowed. But, that would not mean that on that ground the court would exercise its discretionary jurisdiction under Section 256 of the Code of Criminal Procedure at that stage or the defence would not examine his witnesses.
13. Presence of the complainant or her lawyer would have been necessary, as indicated hereinbefore, only for the purpose of cross-examination of the witnesses examined on behalf of the defence. If she did not intend to do so, she would do so at her peril but it cannot be said that her presence was absolutely necessary. Furthermore, 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.
14. We are not concerned herein as to whether the constituted attorney of the complainant could represent the complainant.
Reliance in this behalf having placed on Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (Dead) By Lrs. [(2004) 12 SCC 509] need not, thus, be considered by us.
15. Similar contention of the complainant that the advocate is an agent of his client and it is his duty to appear on behalf of his client, in our opinion, is beyond the scope of this appeal.
16. We, therefore, although do not approve the manner in which the appeal has been disposed of by the High Court, are of the opinion that it is not a fit case where we should exercise our jurisdiction under Article 136 of the Constitution of India.
17. However, keeping in view of the fact that the complaint petition was filed as far back on 10.01.2002, the learned Trial Judge should proceed with the matter in accordance with law and dispose of the case as expeditiously as possible. On the date(s) on which the accused remains present, the complainant would not take any adjournment and in the event she does not choose to be represented in the court, the court shall proceed in the matter in accordance with law. Both the accused and complainant are directed to appear in the Trial Court within two weeks from date.17. The appeal is dismissed with the aforementioned observations.

CASE IN RESPECT OF SEC.498 OF I.P.C

Section 113-B reads as follows:-

"113-B: Presumption as to dowry death-When the question is whether a person
has committed the dowry death of a woman and it is shown that soon before
her death such woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the Court
shall presume that such person had caused the dowry death.

Explanation-For the purpose of this section `dowry death' shall have the
same meaning as in Section have the same meaning as in Section 304-B of the
Indian Penal Code (45 of 1860)."

Consequences of cruelty which are likely to drive a woman to commit suicide
or to cause grave injury or danger to life, limb or health, whether mental
or physical of the woman is required to be established in order to bring
home the application of Section 498A IPC. Cruelty has been defined in the
explanation for the purpose of Section 498A. It is to be noted that
Sections 304-B and 498A, IPC cannot be held to be mutually inclusive. These
provisions deal with two distinct offences. It is true that cruelty is a
common essential to both the Sections and that has to be proved. The
explanation to Section 498A gives the meaning of `cruelty'. In Section 304-
B there is no such explanation about the meaning of `cruelty'. But having
regard to common background to these offences it has to be taken that the
meaning of `cruelty' or `harassment' is the same as prescribed in the
Explanation to Section 498A under which `cruelty' by itself amounts to an
offence.

The object for which Section 498A IPC was introduced is amply reflected in
the Statement of Objects and Reasons while enacting Criminal Law (Second
Amendment) Act No. 46 of 1983. As clearly stated therein the increase in
number of dowry deaths is a matter of serious concern. The extent of the
evil has been commented upon by the Joint Committee of the Houses to
examines the work of the Dowry Prohibition Act, 1961. In some cases,
cruelty of the husband and the relatives of the husband which culminate in
suicide by or murder of the helpless woman concerned, which constitute only
a small fraction involving such cruelty. Therefore, it was proposed to
amend IPC, the Code of Criminal Procedure, 1973 (in short `the Cr.P.C.')
and the Evidence Act suitably to deal effectively not only with cases of
dowry deaths but also cases of cruelty to married women by the husband, in
laws and relatives. The avowed object is to combat the menance of dowry
death and cruelty.

One other provision which is relevant to be noted is Section 306 IPC. The
basic difference between the two Section i.e. Section 306 and Section 498A
is that of intention. Under the latter. cruelty committed by the husband or
his relations drag the women concerned to commit suicide, while under the
former provision suicide is abetted and intended.

It is well settled that mere possibility of abuse of a provisions of law

MARRIAGE FOR ?????

Section 498 reads as follows:

"498A: Husband or relative of husband of a woman subjecting her to cruelty-
Whoever being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a
term which may extend to three years and shall also be liable to fine.

Explanation-For the purpose of this section `cruelty' means-

(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand for
any property or valuable security or is on account of failure by her or any
person related to her to meet such demand."

Cheque bounce cases

In the era of liberalisation with several financial institutions having direct impact on consumers, the Supreme Court has extended the scope of vicarious liabilities in the cheque bouncing cases apart from criminal liabilities, holding that the trial courts can grant compensation to victims who suffered injury due to the dishonouring of cheques.

Making a distinction between fine imposed for criminal liabilities and the grant of compensation, the court ruled that where the offenders sentenced to jail term but no fine is imposed, they are liable to pay compensation to the complainant in terms of the provision of section 375 of the Criminal Procedure Code (CrPC).

Though the fine could be imposed in terms of the provision of the Negotiable Instrument Act applicable to cheque bouncing cases, but “when the fine is not imposed, compensation can be directed to be paid for loss or injury cause to the complainant by reasons of commission of the offence,” a Bench of justice S.B. Sinha and justice Dalveer Bhandari ruled.

Although the purpose of section 375 was to achieve the same, fixing vicarious liabilities on offenders, but legal difference between fine and compensation was that the amount of compensation can be directed to be recovered and the fine is imposed, thus the fine stands on a higher footing than compensation awarded by the courts.

Ordinarily, the fine should be lesser than the amount, which could be granted as compensation by the civil court upon appreciation of the evidence for losses, which might have been reasonably suffered by the complainant, the apex court said.

“The jurisdiction of civil court, in this behalf, for realisation of the amount (of cheque) in question must also be borne in mind. A criminal case is not a substitution for a civil suit.”

“While the trial courts shall give due weight to the need of the victims, it cannot ignore the right of the accused… the discretionary jurisdiction must be exercised judiciously,” the court said.

The ruling came in a cheque bouncing case filed against Goodvalue Marketing Company Ltd by Kotak Mahindra and the trial court in Mumbai imposing a fine of Rs 25,000 on the former, failing which its chairman was sentence to a month’s jail term.

Besides, the Goodvalue chairman was directed by the trial court to pay Rs 15 lakh as compensation for dishonouring the cheque issued by the company.

When the case went in appeal before the High Court, it directed Goodvalue and its chairman to deposit Rs 5 lakh each within four weeks towards the compensation amount with it, which the company challenged in the apex court. The apex court, however, ruled that the compensation of Rs 1 lakh would be the reasonable compensation for the loss suffered by Kotak Mahindra.

Courtesy:By Sri S.S.Negi