Crl.O.P. 26291 of 2009 is allowed granting special leave to the petitioner and the appeal is taken up for hearing as both parties are ready.
2. The appellant herein is the complainant in C.C. No. 107 of 2009 on the file of the learned Judicial Magistrate No. IV, Vellore. The respondent herein is the accused in the said case. The appellant herein filed a private complaint against the respondent herein for an offence punishable under Section 138 of Negotiable Instruments Act.
3. On 20.08.2009, as the complainant was not present before the trial court, the accused was acquitted under
Section 256(1) Cr.P.C. Aggrieved by such acquittal, the appellant has preferred this criminal appeal.
4. The learned counsel for the appellant submitted that the complainant could not be present before the Court on 20.08.2009 due to personal inconvenience and the learned counsel for the complainant has also not represented anything before the Court. But, on that date, after receiving summon, which was issued by the Court on 07.08.2009, the accused was present on 20.08.2009. The learned Magistrate, on that date, could have issued copy of the complaint to the accused and on the next date of hearing, the plea of the accused could have been recorded by the learned Magistrate and as such, the absence of the complainant did not affect the proceedings of the Court. In spite of that, the learned Magistrate acquitted the accused for the absence of the complainant for only one hearing. By dismissing the complaint at threshold, prejudice is caused to the appellant herein. The learned counsel for the appellant prayed for allowing this appeal.
5. The learned counsel for the respondent submitted that after receiving the summons, the accused has been present before the Court on 20.08.2009, but the complainant was absent. For the absence of the complainant, the learned counsel for the complainant has not filed any petition to condone the absence of the complainant and no reason was put forth before the learned Magistrate by the complainant for his absence on that date.
6. This Court considered the submissions made by both parties and perused the records.
7. The sworn statement was recorded on 09.06.2009 and the case was called on 10.07.2009. At that time, the complainant was present. Again, the case was called on 07.08.2009 and on that day, the complainant was present and the accused was not present. Summon was issued to the accused and the case was adjourned to 20.08.2009. On 20.08.2009, the accused appeared before the Court, but the complainant was called absent.
8. The learned Magistrate, after calling at 12.50 p.m., had acquitted the accused under
Section 256(1) Cr.P.C. Admittedly, the accused was not served with the copy of the complaint on 20.08.2009. Even copy of the complaint has not accompanied with summons, which should be served to the accused. In such case, the learned Magistrate could have served the copy of the complaint to the accused and adjourned the case to some other date. Proviso under
Section 256(1) Cr.P.C. is as follows:
"Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case."
9. The complainant had appeared earlier and he was absent for only one hearing. On that day, presence of the complainant was not necessary for further proceedings. The learned Magistrate erred in acquitting the accused for reason that the complainant was absent. In the interest of justice, the appeal is allowed and acquittal of the accused is set aside. The learned Judicial Magistrate No. IV, Vellore is hereby directed to proceed further with the case. The accused is also directed to appear before the learned Judicial Magistrate No. IV, Vellore on 20.01.2010. The office is directed to forward a copy of this judgment as early as possible to the learned Judicial Magistrate, No. IV. Vellore (Dt.).
ar To
1. Judicial Magistrate No. IV, Vellore
2. The Public Prosecutor, High Court, Madras