IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27/12/2002
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL APPEAL NO.1747 of 2002
and
CRL.O.P.NO.30802 OF 2002
M/s.Apple Credit Corporation Ltd.,
Gokul Arcade, I floor,
No.2, Sardar Patel Road,
Adayar, Chennai-20,
rep. by Antony Raj. .. Appellant
-Vs-
1. M/s. S.J.Marine Services (P) Ltd.,
rep. by P.Jyothilakshmi,
No.4, Sowari Muthu Lane,
Chennai – 600 001.
2. Mrs.P.Jothilakshmi,
No.4, Sowari Muthu Lane,
Chennai – 600 001.
3. K.t.Sadasivam,
Plot No.16, I Main Road,
Krishna Nagar,
Chromepet,
Chennai – 600 044. .. Respondents
Criminal Appeal is directed against the judgment dated 14.6.2002
rendered in C.C.No. 5728 of 2000 by the Court of IX Metropolitan Magistrate,
at Saidapet, Chennai, as stated therein.
!For Appellant : Mr.S.Venkatesan.
^For Respondent: No appearance.
:JUDGMENT
The above Criminal Appeal is directed against the judgment dated
14.6.2002 rendered in C.C.No.5728 of 2000 by the Court of IX Metropolitan
Magistrate, Saidapet, Chennai, thereby dismissing the complaint filed by the
appellant against the respondents for an offence punishable under Section 138
and 141 of Negotiable Instruments Act, as amended with Section 200 & 357 of
the Cr.P.C. and acquitting the respondents under Section 204(4) of Cr.P.C.
on account of the appellant having not taken proper steps in the private
complaint initiated by him.
2. Heard the learned counsel for the appellant and perused the
records. Proof affidavit has been filed by the learned counsel for the
appellant for having served notice on all the respondents and hence the
service is held sufficient. Respondents are called absent since no
representation has been made on their behalf. Hence this Court is left with
no choice but to decide the above appeal on merits in accordance with law
having regard to the materials placed on record and upon hearing the learned
counsel for the appellant.
3. The lower Court has simply passed a one sentence order stating
that, since for a long time the complainant did not come forward to prosecute
the complaint,it is revealed that he has no interest in prosecuting the case
against the respondents and hence dismissed the said complaint thereby
acquitting the respondents under Section 204(4) of the Cr.P.C. without
assigning any other valid or tangible reason and hence, the appellant has come
forward to prefer the above Criminal Appeal on certain grounds as pleaded in
the grounds of appeal.
4. The learned counsel appearing on behalf of the appellant would
argue that Section 204(4) is not applicable to the case in hand, factually
since the Section warrants ‘when by any law for the time being in force any
process fees or other fees are payable, no process shall be issued until the
fees are paid and if such fees are not paid within a reasonable time, the
Magistrate may dismiss the complaint.’
5. The learned counsel would further argue that in the case in hand
this situation is not present. It is not at all the case of the appellant
that he has not paid the fees as ordered by the Court so as to make the
Magistrate to dismiss the complaint as he has done in the case in hand but in
spite of having taken the steps in paying the fees relevant for the service
being effected, but for other reasons the service is not able to be carried
out and the Magistrate, under the wrong impression that it falls under Section
204(4) of Cr.P.C. has passed the order which is not correct nor could such an
order passed by the Magistrate be sustained.
6. There is force in the arguments of the learned counsel for the
appellant. Moreover, in the absence of any counter arguments coming forth
from the other side and since no one appeared on behalf of the respondents in
spite of they having been served, in consideration of the arguments of the
learned counsel for the appellant and the order of the lower Court passed
which has no bearing on the Section 204(4) of the Cr.P.C., this Court is of
the view that dismissing the complaint filed by the petitioner under this
Section is neither proper nor could the same be sustained in law and hence the
only course open for this Court, under these circumstances, is to set aside
the order of the trial Court and remand the same for carrying on with the
usual procedures established by law so as to deliver the judgment in full
consideration of the facts and circumstances encircling the whole case and in
accordance with the law and hence the following order:
In result,
(i) the above Criminal Appeal succeeds and the same is allowed;
(ii) the judgment dated 14.6.2002 rendered in C.C.No. 5728 of 2000 by
the Court of IX Metropolitan Magistrate, at Saidapet, Chennai, is hereby set
aside;
(iii) the case is remanded to the trial Court for continuing the trial
procedures from where it has been left with and to deliver the judgment after
full trial in full consideration of the facts and circumstances of the case
and in accordance with law.
(iv) Consequently Crl.O.P.No.30802 OF 2002 is also allowed.
27-12-2002
gr.
Index: Yes
Internet: Yes
To
1. The IX Metropolitan Magistrate, Saidapet, Chennai.
2. -do- thro’ the
3. The Public Prosecutor,
Madras.