IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.07.2007 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl. R.C. No.699 of 2005 and Crl. M.P. No.4433 of 2005 N.Chenniappan .. Petitioner/Complainant Vs 1. M/s.Sakthi Murugan Oil Mills rep by its Managing partner A.K.Palanisamy No.2/164 N.H.Main Road Vijayamangalam Perundurai Taluk Erode District. 2. A.K.Palanisamy .. Respondents/Accused Prayer: This revision has been preferred against the order dated 14.07.2004 made in Crl.M.P.3221/2004 in STC.NO.2691 of 2003 on the file of the District Munsif-cum-Judicial Magistrate, Perundurai. For Petitioner : Mr.A.K.Kumaraswamy For Respondents : Mr.N.Manoharan JUDGMENT
This revision has been preferred against the order in Crl.M.P.No.3221 of 2004 in STC.No.2691 of 2003 on the file of the District Munsif-cum-Judicial Magistrate, Perundurai. Crl.M.P.No.3221 of 2004 in STC.No.2691 of 2003 was filed under Section 319 of Cr.P.C., by the complainant with a requisition to the Court to proceed with against A3 to A5 also, who are the other partners of A1-M/s.Sakthi Murugan Oil Mills.
2.After recording the sworn statement of the complainant on 11.12.2003, the learned Judicial Magistrate has passed an order in STC.No.2691 of 2003 on 11.12.2003 as follows:
“Sworn statement recorded. Prima Facie case made out. Taken on file under Section 138 of the Negotiable Instruments Act and posted to 27.1.2004. Issue summons to the accused on process.”
The above said order will go to show that the learned Judicial Magistrate has, after taking cognizance of the case, ordered summons to all the accused. A perusal of the complaint will go to show that there are five accused viz. i) M/s.Sakthi Murugan Oil Mills, ii)A.K.Palanisamy, iii)C.Palanisamy, iv)D.Sarojini and v)M.Karuppusamy. From the adjudication entries dated 27.1.2004 it is seen that the complainant and A1 and A2 alone were present and copies were furnished to A1 and A2 alone and the matter was adjoruned to 30.1.2004 for further proceedings. Thereafter, the learned Judicial Magistrate has proceeded against A1 and A2 alone. The provision under Section 202 of Cr.P.C., has not been followed in this case. The complaint was also not dismissed under Section 203 of Cr.P.c. But the learned Judicial Magistrare under Section 204 of Cr.P.C., has ordered summons to all the accused on 11.12.2003. On 1.6.2004 the complainant has filed a petition in Crl.M.P.No.3221 of 2004 in STC.No.2691 of 2003, which was dismissed on the ground that it is a belated application. The said order is under challenge now before this Court.
3.This Court had sent for the entire records from the trial Court. The learned Judicial Magistrate after taking cognizance of the complaint under Section 138 of the Negotiable Instruments Act, has ordered summons to all the accused on 11.12.2003 itself. But it is not known under what circumstances the summons were issued only to A1 and A2. Since there was no speaking order available on record, there was no opportunity for the complainant to agitate the same before the appellate forum. The petition filed under Section 319 of Cr.P.C., after a lapse of nearly seven months, has been dismissed on the ground that it is a belated one. For the said delay the complainant is no way responsible. If the summons as ordered by the learned Judicial Magistrate would have been sent to all the accused then there will not be any necessity to prefer an application under Section 319 of Cr.P.C., by the complainant.
4. Under such circumstances, I am of the view that it is a fit case to be remanded to the trial Court. Accordingly, the matter is remanded to the trial Court for conducting de-nova trial after serving summons to all the accused as directed by the learned Judicial Magistrate as per his order dated 11.12.2003, which was passed under Section 204 of Cr.P.C. Apart from this necessary action must by taken on erring official who has failed to send summons to A3 to A5 as per the orders of the learned Judicial Magistrate dated 11.12.2003. The learned Judicial Magistrate is directed to dispose of the matter (STC.No.2691 of 2003) within three months from the date of receipt of copy of this order.
ssv
To
1. The District Munsif-cum-Judicial Magistrate
Perunthurai.
2. -do-through The Chief Judicial Magistrate
Erode.