BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/07/2010 Coram THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal (MD) No.220 of 2010 and Crl.O.P.(MD) No.7547 of 2010 R.Sadhu .. Petitioner Vs M.Pandian .. Respondent Criminal Appeal filed under Sections 378 of Cr.P.C. to call for the records relating to the order passed by the learned Judicial Magistrate No.IV, Madurai, in S.T.C.No.45 of 2007, dated 22.01.2010 and remand the case back for trial by setting aside the same. !For Petitioner ... M/s.K.Sudalaiyandi ^For Respondents ... Mr.B.Chandran *** :JUDGMENT
This criminal appeal has been filed to remand the case back for trial by
setting aside the order dated 22.01.2010, made in S.T.C.No.45 of 2007, on the
file of the learned Judicial Magistrate No.IV, Madurai.
2. The petitioner is the complainant in S.T.C.No.45 of 2007, on the file
of the learned Judicial Magistrate No.IV, Madurai. He filed a private complaint
under Section 138 of the Negotiable Instruments Act against the respondent. The
respondent filed an application to refer the cheque with the handwriting expert
and the same was allowed on 31.07.2009. Even on that day, the complainant was
not present. Afterwards, on six occasions including the one on 22.01.2010, he
was not present before the Court and there was no representation on his side for
all the said hearings. On 22.01.2010, the learned Judicial Magistrate dismissed
the complaint. The order of dismissal is as follows:
“Complainant absent. No representation. Complainant absent even after
Court Notice. Accused absent. 317 Cr.P.C. petition filed and allowed. Hence,
the complaint is dismissed and the accused is acquitted in terms of Sec.256
Cr.P.C.”
3. Mr.K.Sudalaiyandi, learned counsel appearing for the petitioner
strenuously argued that the presence of the complainant was not necessary on
that date of hearing viz., on 22.01.2010 and hence, the dismissal of the
complaint by the learned Judicial Magistrate is not warranted. In support of
his contention, he placed reliance upon a decision of this Court in the case of
R.Murali v. D.Udhayakumar, (2007) 1 MLJ (Crl.) 981, in which the learned Judge
has followed a decision of the Hon’ble Supreme Court in Associated Cement
Company Limited v. Keshvanand, (1998) MLJ (Crl) SC 170 in which it has been held
as follows:
“Two constraints are imposed on the Court for exercising the power under Section
256, 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 to the step of axing down the complaint may
not be a proper exercise of the power envisaged in the Section. The discretion
must, there, be exercised judicially and fairly without impairing the cause of
administration of criminal justice.”
4. In the light of the above said decision, it is not proper for the
learned Judicial Magistrate to dismiss the complaint in the absence of the
complainant when his presence was not required for further proceedings. As far
as the present case is concerned, the matter had been posted for receipt of the
opinion of the handwriting expert and on perusal of the pleadings shows that it
has not been received so far. Hence, on 22.01.2010, the presence of the
complainant was not essential and the dismissal of the complaint on that date is
not at all proper.
5. This Court also observes that when the Court dismisses the complaint
for the absence of the complainant, it is expected to record reasons as to the
necessity of presence of the complainant before the Court. In other words,
there shall be a finding in the order of the Court below that without the
presence of the complainant, the case could not be proceeded with on the
particular date which paved way for the learned Judicial Magistrate to dismiss
the complaint. Of course, for six hearings the complainant was not present and
there was no representation for him still the law requires that unless the
presence of the complainant is essential for a particular hearing, the learned
Judicial Magistrate cannot dismiss the complaint. In these circumstances, the
order challenged before this Court deserves to be set aside which is accordingly
set aside.
6. In the result, the Criminal Appeal is allowed. The learned Judicial
Magistrate No.IV, Madurai, is directed to restore the complaint and proceed
further with the case in the light of the guidelines followed by the Hon’ble
Supreme Court in Associated Cement’s case cited supra.
srm
To
The Judicial Magistrate No.IV,
Madurai.