IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.10.2009 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.A.No.548 of 2009 Sri.R.Sadhasivam ... Appellant vs. Smt.R.Ezhilarasi ... Respondent Prayer:- Petition filed under Sections 378 of Cr.P.C.to set aside the order dated 23.7.2009 passed by the Judicial Magistrate No.I, Tiruppur, in S.T.C.No.2822 of 2007. For Appellant : Mr.R.Marudhachalamurthy ORDER
The appellant herein is the complainant in S.T.C.No.2822 of 2009 on the file of the Judicial Magistrate No.I, Tiruppur, and the respondent herein is the accused. A complaint was filed by the appellant herein against the respondent for an offence under Section 138 of the Negotiable Instruments Act. After taking the complaint on file, the learned Magistrate issued summons to the accused, but the accused has not appeared. A bailable warrant was issued against the accused on 30.10.2007. The said bailable warrant was not executed and the case was pending.
2. While so, on 23.7.2009, as the complainant/appellant herein was absent and there was no representation on behalf of the complainant, the learned Magistrate dismissed the complaint under Sections 256(1) and 204(4) of Cr.P.C. Aggrieved by the said order, the appellant herein has preferred this criminal appeal.
3. After this appeal being admitted, notice was ordered to the respondent and private notice also was ordered. Despite the learned counsel for the appellant served private notice on the respondent and filed the proof affidavit, the respondent has not chosen to appear before this Court.
4. The learned counsel for the appellant would submit that the complaint was taken on file on 17.9.2007 and the complainant also has been appearing before the Court regularly from that date onwards and almost all the hearings the appellant was present. But only on 23.7.2009 he could not appear, due to sudden demise of his relative. The Magistrate, without taking into consideration the appearance made by the appellant on the earlier occasions and also the fact that the bailable warrant issued against the accused is pending, unjustifiably and in an arbitrary and capricious manner dismissed the complaint, even prior to the appearance of the accused. The learned counsel for the appellant further submits that the learned Magistrate erroneously applied the provisions contemplated under Sections 256 and 204(4) of Cr.P.C.
5. I have considered the submissions made by the learned counsel for the appellant and perused the records.
6. The order passed by the learned Magistrate, Tiruppur, is as follows:
“Complainant absent. No representation for the complainant. This case is pending from 31.7.2008 for execution of warrant against the accused. No steps taken to execute the warrant. Process memo also not filed for the past 1 1/2 years. Inspite of specific instructions to execute the warrant, the complainant has neither appeared nor has taken steps to execute the warrant.
Considering these facts and circumstances, this complaint is dismissed under Sec.256(1) and 204(4) of Cr.P.C.”
7. The above order shows that the case is pending from 31.7.2008 for execution of warrant, as against the accused. But, the learned Magistrate had observed in the same order that no process memo was filed for the past 1= years. At the time of admission of the appeal, it was represented by the learned counsel for the appellant that process memo was filed and thereafter only the bailable warrant issued against the accused was obtained and based on such representation of the learned counsel for the appellant, this Court called for report from the learned Magistrate, Tiruppur.
8. The learned Magistrate also sent a report, in which he has stated that the bailable warrant was issued on 30.10.2007 and the process memo was also filed on 6.11.2007 and the counsel for the complainant/appellant received the bailable warrant on 16.11.2007. This report made by the learned Magistrate is quite contrary to the order passed by him. The order shows as if no process memo was filed, which is incorrect. In the report given by the learned Magistrate, he has further stated that ‘thereafter process memo was not filed until the complaint was dismissed on 23.7.2009’. It is not known as to how the occasion would arise for paying the process memo once again after issuance of the warrant and before it is executed or cancelled.
9. Admittedly, the bailable warrant, which was issued against the accused, signed by the Magistrate on 6.11.2007 is pending. Section 70(2) of Cr.P.C. is extracted hereunder for ready reference.
“Sec.70. Form of warrant of arrest and duration-(1) . . . . . . . . . .
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.”
10. As per the above provision, the warrant of arrest issued by the trial Court shall remain in force until it is cancelled by the Court, which issued it or until it is executed. Since the bailable warrant issued against the accused being not cancelled and it continued to be in force even after the expiry of the date fixed either for the appearance of the accused or for return of the warrant, the learned Magistrate erred in passing the order stating that the process memo was not filed for the past 1= years. Further, the learned Magistrate observed in the said order that inspite of the specific instruction to execute the warrant, the complainant has neither appeared nor has taken any steps to execute the warrant. The warrant has to be executed only by the police and not by the complainant and as such, the duty is cast upon the police officer, to whom the direction was given to execute the warrant. The learned Magistrate, instead of getting the report from the police officer, had found fault with the complainant regarding the execution of the warrant. It is also represented by the learned counsel for the appellant that every hearing was adjourned by the learned Magistrate insisting the complainant to execute the warrant, but the police were not helping the complainant and they have not taken any steps to execute the warrant.
11. In view of my above discussion, the order passed by the learned Judicial Magistrate, Tiruppur, dated 23.7.2009 is set aside and the Judicial Magistrate, Tiruppur, is directed to proceed further with the case and if necessary he may issue fresh non-bailable warrant against the accused.
In the result, the appeal is allowed.
msk
To
The Judicial Magistrate No.I,
Tiruppur