This Criminal Appeal is filed by the complainant against judgement dated 12.5.2008 passed in CC.No.173/2007 by the learned District Munsif cum Chief Judicial Magistrate, Perundurai, Erode, acquitting the Respondent/ accused.
2. The Appellant is the complainant before the learned District Munsif cum Judicial Magistrate, Perundurai, Erode and he lodged a private complaint on the strength of a dishonoured cheque against the Respondent under Section 138 of the Negotiable Instruments Act.
3. The learned Magistrate dismissed the said complaint, acquitting the accused under
Section 256(1) of Code of Criminal Procedure for non appearance of the complainant. It is stated in the impugned order that even after a final chance having been given to the complainant for submitting his evidence, he failed to appear before the court and further, instead of filing a fresh proof affidavit, he filed a petition under
Section 256 of Code of Criminal Procedure, which was dismissed by the said court and therefore, it was held that the non appearance of the complainant showed that he was not ready and willing to participate in the proceedings and hence, dismissed the complaint.
4. Mr.I.C.Vasudevan, the learned counsel for the Appellant strenuously contended that merely because of non appearance of the complainant before the court below at the time of hearing, the Presiding Officer cannot pass an order acquitting the accused, and dismiss the complaint.
5. According to the learned counsel for the Appellant, the court below ought to have adopted a proper procedure and the non-observance of such procedure would tantamount to non-rendering of proper justice to the parties. In support of his contention, he relied on the decision of the Honourable Supreme Court rendered in the case of Associated Cement Co. Limited Vs. Keshavanand [1998-Crl.LR-856], wherein it is held thus:-
"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 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 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 complaint on that date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice."
From the above said decision, it is clear that the proper course to be adopted by the learned District Munsif cum Judicial Magistrate is that when the complaint was taken up for hearing, if the complainant was not present before the Court, it is incumbent upon the Presiding Officer to issue a notice to the complainant and without issuance of such a notice, adopting the procedure of dismissing the complaint under
Section 256(1) of Code of Criminal Procedure is not at all appreciable.
6. Mr.N.Manokaran, the learned counsel for the Respondent submitted that a chance was given to the complainant for producing his evidence, but despite the chance, he failed to appear and therefore, the learned Magistrate rightly dismissed the complaint and thus supported the impugned order of the court below. He relied on the decision of the Honourable Supreme Court rendered in the case of S.Rama Krishna Vs. S.Rami Reddy (Dead) by LRs and others [2008-5-SCC-535] in support of his contentions.
7. The facts in the decision relied on by the learned counsel for the Respondent are distinguishable, inasmuch as in the said decision, after the death of the complainant, as the legal heirs were not interested in getting the matter prosecuted and the accused kept appearing on most dates and considering the said aspect, the learned Magistrate acquitted the accused, which was set aside by the High court and on an appeal against the acquittal, the Honourable Supreme Court held that the complainant cannot allow the case to remain pending indefinitely.
8. In the present case, it is seen from the order sheet that on some hearings, the accused remained absent and the case was adjourned on his filing a petition under
Section 317 of Code of Criminal Procedure. It is also seen that the complainant remained absent for two or three hearings and on the previous hearing, i.e. on 24.4.2008, the complainant was present and the accused was absent and on the petition filed by the learned counsel for the accused to condone the absence of the accused, the matter was adjourned to 12.5.2008 for trial. It is also seen from the order sheet that the matter was not posted as a last chance. It was merely stated that it was posted for trial. On 12.5.2008, the complainant was absent and the petition had been filed under
Section 256 of Code of Criminal Procedure and the petition was dismissed.
9. The learned counsel for the Appellant submitted that the complainant was suffering from high fever and therefore, he could not attend the court and produce the evidence, which was represented by the learned counsel for the complainant to the court, but in spite of it, the petition was dismissed.
10. The Honourable Supreme Court has repeatedly held that the discretion must be exercised by the learned Magistrate judicially and fairly. When the court notices that the complainant is absent for a particular day, the court must consider as to whether the personal attendance of the complainant is necessary and if so, adjourn the case for next hearing so as to enable him to be present on the said date and produce his evidence. Only on the next hearing if he fails to appear and produce his evidence, then the discretion could be exercised by dismissing the complaint and acquitting the accused. But, in this case, no such an opportunity has been given to the complainant and it is seen that he had been present for the previous hearings and remained absent only due to the reason that he was suffering from high fever, which was also brought to the notice of the court by the learned counsel for the complainant.
11. In view of the above said reasons, this court is of the considered view that the learned Magistrate should have adjourned the case to some other date to enable the complainant to be present before the court and hence, this courts finds legal grounds for allowing this Criminal Appeal.
ARUNA JAGADEESAN, J.
Srcm
12. In the result, this Criminal Appeal is allowed.
02.12.2009 Index:Yes/No Web:Yes/No Srcm To:
1.The District Munsif cum Chief Judicial Magistrate, Erode
2.The Public Prosecutor, High Court, Madras Crl.A.No.643/2008