JUDGMENT
V. Kanagaraj, J.
1. This Criminal Appeal has been preferred against the order passed by the Judicial Magistrate, Tiruchendur, in C.C. No. 361 of 1997 dated 16.02.2001, whereby the Trial Court, on account of the absence of the appellant/complainant on 16.02.2001 when the case was posted before it, not only acquitted the accused, but also dismissed the whole complaint filed by the appellant under Section 138 of the Negotiable Instruments Act.
2. Tracing the history of the above appeal, it comes to be known that the appellant has filed the complaint against the respondent herein before the Court of the Judicial Magistrate, Tiruchendur, on the ground of dishonouring of cheque of the Indian Bank, Kulasekarapattinam Branch, issued by the respondent for a sum of Rs. One lakh, for insufficiency of funds, hence praying for relief in accordance with Section 138 of the Negotiable Instruments Act, 1881. However, from the order passed by the Court below dated 16.02.2001, it is seen that for non-appearance of the complainant when the case was called on that day either in person or by Pleader, the Court below acquitted the accused therein under Section 256 of the Code of Criminal Procedure, against which, on certain grounds, the complainant therein, has come forward to prefer the above Criminal Appeal.
3. The main contention of the appellant is that on 16.02.2001, having closed the entire evidence on the part of the complainant, the case stood posted for the witnesses of the respondent and the respondent was absent that day. Moreover, a Non-Bailable Warrant was pending against the respondent-accused and hence, the appellant would come forward to say that the Judicial Magistrate has failed to follow the guidelines laid down by the Hon’ble Supreme Court in Associated Cement Co. Ltd. vs. Keshvanand and that the Judicial Magistrate was not fair in exercising the jurisdiction vested in him under Section 256 Cr.P.C., in the context of the case on that day.
4. In Associated Cement Co. Ltd. vs. Keshvanand cited supra, the Apex Court has given the Code that is to be followed by the Courts in the following manner:-
“Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.”
5. During arguments, only the learned Counsel for the appellant was present and in spite of sufficient notice, no appearance was made on the part of the respondent and hence, the Court is left with no choice, but to decide the matter on merits and in consideration of the arguments of the learned Counsel appearing for the appellant and having regard to the materials placed on record.
6. There is no denial of the fact that the complainant was absent on the date of the order, that was on 16.02.2001, regarding which, the complainant does not utter anything at least an excuse for his absence or for the absence of his Counsel. However, it further comes to be known that the accused was also absent on that day and a Non-Bailable Warrant issued against the accused was pending before the lower Court and these facts coupled with the other allegations of the appellant herein that his part of the evidence was over and it was the other side for recording of whose evidence, the case was posted on 16.02.2001 and hence, there was no necessity on the part of the Lower Court to have acquitted the accused all of a sudden as though the accused was present and entitled to such an acquittal, the Trial Court has acquitted the accused, which is erroneous as it has been argued on the part of the appellant.
7. Be that as it may. Now, the only point for consideration is whether the Lower Court was right in acquitting the accused under Section 256 of the Code of Criminal Procedure, calling the complainant and his Counsel absent on 16.02.2001?
8. It seems that the entire evidence on the part of the complainant has already been recorded and the accused was also not in the habit of appearing before the Court as a result of which, the Lower Court itself has already issued a Non-Bailable Warrant, which was pending. At this juncture, the Lower court in the interest of justice should have thought of passing a judgement on merits on materials available on record and in accordance with the law, instead of making use of Section 256 of the Code of Criminal Procedure for acquitting the accused for no better reason or advantage or to serve any purpose of law.
9. However, realising the fault, the appellant has come forward to further prosecute the case it is quite reasonable on the part of this Court to give him an opportunity to be heard and hence the following judgement:
10. In result,
(i) the above Criminal Appeal is allowed setting aside the order dated 16.02.2001 made in C.C. No. 361 of 1997 by the Court of the Judicial Magistrate, Tiruchendur;
(ii) the matter is remanded to the Lower Court for continuation of the trial and to deliver a judgement on merits and in accordance with the law in full consideration of the facts and circumstances of the case and the materials made available on record; and
(iii) the appellant shall not absent himself whenever the case is posted in future.