S. ANAND versus VASUMATHI CHANDRASEKAR

Citation: [2008] 2 S.C.R. 870 · Decided: 14-02-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2008] 2 S.C.R. 870 
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A 
S. ANAN" 
..... 
.v. 
VASUMATHI CHANDRASEKAR 
i-
(Criminal Appeal No. 311 of 2008) 
B 
FEBRUARY 14, 2008 
r
[S.B. SINHA AND V.S. SIRPURKAR, JJ.] 
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Code of Criminal Procedure, 1973 - ss.256 and 311 -
1:.-
Alleged commission of offence under s.138 of the NI Act -
c Criminal complaint -
Metropolitan Magistrate acquitted 
accused-appellant under s.256(1) of CrPC stating that the 
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complainant had been continuously absent and there was no 
representation on her behalf for several hearings - Order set 
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aside by High Court -
On· appeal, held: Presence of 
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D complainant or her lawyer would have been necessary only 
for cross-examination of the witnesses examined on behalf of 
the defence - If she did not intend to do so, she would do so at 
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;i 
her peril but it cannot be said that her presence was absolutely 
, 
necessary - Furthermore, when prosecution had closed its 
case and the accused had been examined under s.311 of 
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E CrPC, the Court was required to pass a judgment on merit of 
the matter - Although, manner in which appeal was disposed 
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of by High Court not proper, case not fit for exercising 
;urisdiction under art. 136 of the Constitution - Negotiable 
Instruments Act, 1881 - s. 138. 
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F 
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... 
Appellant was being prosecuted in the Court of 
i 
Metropolitan Magistrate, for alleged commission .of an 
offence under s.138 of the Negotiable Instruments Act 
on the basis of a complaint petition filed by the 
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Respondent. The Metropolitan Magistrate acquitted the 
accused-appellant under s.256(1) of CrPC stating that 
the complainant had been continuously absent and 
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there was no representation on her behalf for several 
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hearings. Appeal filed thereagainst was allowed by the 
High Court. 
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870 
l ,. 
S. ANAND v. VASUMATHI CHANDRASEKAR 
871 
It was submitted by the Appellant, appearing in A 
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person, that the c·omplainant having remained absent for 
more than one year, the High Court ought not to have 
interfered with the discretionary jurisdiction exercised by 
the Metropolitan Magistrate, particularly when he had been 
appearing in person and the complainant not only B 
executed a power of attorney in favour of another person, 
but a lawyer was also appointed . 
. ..... ~ 
Respondents, however, submitted that ·in view of the 
fact that the matter was adjourned for examination of the 
DWs, the Magistrate could not have exercised its c 
jurisdiction under Section 256 of CrPC. 
The question which arQse for consideration in the 
present appeal is whether S.256 of CrPC, which provides 
for disposal of a complaint in default, could have beeM D 
resorted to in the facts of the case as the witnesses on 
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behalf of complainant have already been examined. 
Dismissing the appeal, the Court 
HELD:1.1.The date was fixed for examining the 
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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. 
[Para 11] [875-D, E] 
1.2. The accused was entitled to file an application F 
under s.311. of CrPC. Such an application was required to 
be considered and disposed of by the Magistrate. 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 G 
not mean that on that ground the court would exercise its 
.. r. 
discretionary jurisdiction under s.256 of CrPC at that 
stage or th.e defence would not examine his witnesses. 
[Para 12] [875-E, F, G] 
1.3. Presence of the complainant or her lawyer wo.~ld H 
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872 
SUPREME COURT REPORTS 
[2008] 2 S.C.R. 
,, 
A have been necessary 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 
·s has closed its case and the accused has been examined 
under Section ,311 of CrPC, the· Court was required to 
pass a judgment on merit of the matter. [Para 13] [875-H; 
~+, 
876-A, B] 
1.4. Although, the manner in which the appeal has 
·C been disposed of by the High Court is not proper, it is not 
a fit case where one should exercise jurisdiction under 
Article 136 of the Constitution. [Para 16] [876-D, E] 
1.5. However, keeping in view of the fact that the 
complaint petition was filed as far b

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