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2004 DIGILAW 1634 (MAD)

V. Manikandan v. P. Ramesh

2004-12-02

R.BANUMATHI

body2004
Judgment :- Aggrieved over the dismissal of his Complaint, acquitting the Accused under Sec.256(1) Crl.P.C in S.T.C.No.6 of 1996 by Judicial Magistrate No.III, Pollachi by the Order Dated 01.10.1997, the Complainant has preferred this Appeal. 2. Case of Complainant is that the Respondent / Accused had purchased two Agricultural apparatus – two Cultivators and one Leveler worth Rs.26,900/-. For discharging that amount, the Accused issued two Cheques for Rs.20,000/- (Cheque No.563058 dated 20.09.1995) and Rs.6,900/- (Cheque No.563057 dated 10.09.1995) drawn on State Bank of India, Pollachi Branch. The Complainant has presented the Cheques for collection through his Banker – Karur Vysya Bank Ltd., Pollachi Branch on 21.09.1995. The Cheques were returned with endorsement “Insufficiency of Funds”. The Complainant has informed the same to the Accused and the Accused requested the Complainant to present the Cheques after twenty days. The Cheques were presented again for the second time on 16.10.1995; which were also returned for Insufficient funds. The Complainant issued the Statutory Notice dated 30.10.1995, which was also returned unserved. Hence, the Complainant has filed the Complaint under Sec.138 Negotiable Instruments Act (hereinafter referred to as “N.I.Act”). 3. The Complaint was taken on file on 05.01.1996. For non-appearance of the Complainant, the Complaint was dismissed on 01.10.1997. In the Impugned Order, learned Magistrate has pointed out that the Appellant / Complainant had been a chronic non-attender to the Court and that the Complainant is not interested in proceeding with the matter and on that ground, dismissed the Complaint, acquitting the Accused under Sec.256(1) Crl.P.C. 4. Aggrieved over the dismissal of the Complaint, the Appellant / Complainant has preferred this Appeal. Assailing the Impugned Order, learned counsel for the Appellant has submitted that the Trial Magistrate has failed to take note that Non-bailable Warrant was pending against the Respondent and that it is for the Police to execute the Warrant and no fault could be attributed to the Complainant. Pointing out that the absence of the Complainant was condoned for the earlier hearings, the Complainant was under the bonafide impression that his absence would be condoned on 01.10.1997 also on which date, the Petition could not be filed in the Forenoon session and the Complainant was represented by the Counsel on the Afternoon session. But, the Complaint was dismissed for non-appearance in the Forenoon session itself by calling the case between 10.35 a.m and 11.05 a.m. 5. But, the Complaint was dismissed for non-appearance in the Forenoon session itself by calling the case between 10.35 a.m and 11.05 a.m. 5. The point that arises for consideration is whether there is proper exercise of judicial discretion by the Trial Magistrate in dismissing the Complaint for non-appearance of the Complainant. 6. The contention that the Complainant is not a chronic non-attender to the Court has no force, if considered in the light of the conduct of the Complainant. In the Impugned Order, learned Trial Magistrate has pointed out the non-appearance of the Appellant / Complainant on 11.07.1997, 29.07.1997, 13.08.1997, 29.08.1997 and 12.09.1997. On those hearing dates, the Complainant was absent and N.B.W was pending against the Accused. No further progress could be made in the case. The Notes Paper of the Trial Court on those hearing dates, for instance 12.09.1997 reads:- Justifiable reasons are set forth in the Impugned Order for the continuous non-appearance of the Complainant for more than Five hearings. Though in the previous hearings, onbehalf of the Appellant / Complainant, Petition was filed under Section 256 Crl.P.C and the absence was condoned, the fact remains that the Complainant had no inclination in attending the Court. 7. By careful perusal of the Notes Paper, it is also seen that Non-bailable Warrant has been pending against the Accused for long time from 04.02.1997. Onbehalf of the Appellant / Complainant, it is contended that it is the responsibility of the Police to execute the non-bailable Warrant and that the Complaint cannot be thrown away for non execution of the Warrant. This contention does not merit acceptance. The Complainant, having filed the Complaint under Sec.138 N.I.Act, cannot disown the responsibility that the Police are to execute the Warrant. When the Police are busy and held up in variety of works, it is for the Complainant to take genuine steps in approaching the Police in furnishing the Address, information and whereabouts of the absconding Accused. Without taking such steps, Complainant cannot throw away his responsibility of co-operating with the Police in getting the warrant executed. No such steps seems to have been taken by the Appellant / Complainant. 8. Without taking such steps, Complainant cannot throw away his responsibility of co-operating with the Police in getting the warrant executed. No such steps seems to have been taken by the Appellant / Complainant. 8. When the Complainant is absent on the date of hearing, the following three courses are open to the Magistrate:- (1) He may acquit the Accused; or (2) He may adjourn the hearing of the case; or (3) He may dispense with the personal attendance of the Complainant and proceed with the case. Consequently, it is obvious that the Magistrate has to take care as to whether in the facts of the case it would be appropriate to dismiss the Complaint or to acquit the Accused or to adjourn the case to some other day or to dispense with attendance of the Complainant and proceed with the case. The real test in such like matters always is of good faith. The surrounding circumstances and facts have to be taken note of. The consistent view taken by various Courts is that on the date fixed in the Complaint case, if the Complainant is absent, the Magistrate shall acquit the Accused unless for reasons he thinks it proper to adjourn the case. This is judicial discretion to be exercised by the Court. However, it should not be adopted as a short cut method to put an end the litigation. 9. It is contended onbehalf of the Appellant that in the earlier hearings on 11.07.1997, 29.07.1997, 13.08.1997, 29.08.1997 and 12.09.1997, Petition under Sec.256(1) Crl.P.C was filed onbehalf of the Complainant and the same was allowed. On 01.10.1997, when the Complaint was called in the Forenoon Session between 10.35 a.m and 11.05 a.m, learned Trial Magistrate, instead of passing over the matter to Afternoon Session, dismissed the Complaint in the Forenoon Session itself. The contention that the matter ought to have been passed over and called for in the Afternoon Sessions is unacceptable. It would be improper to give any such direction to the Magistrate to call the cases by passing over the cases to Afternoon Session. If all the cases, where the Complainant / Prosecution has not made appearance, are passed over and again to be called in the Afternoon Session, there would be great dislocation of the normal working of the Trial Courts. If all the cases, where the Complainant / Prosecution has not made appearance, are passed over and again to be called in the Afternoon Session, there would be great dislocation of the normal working of the Trial Courts. The Complainant is not right in contending that the case ought to have been passed over to the Afternoon Session till such time, the Complainant was represented by the Counsel in the Afternoon Session. Likewise, the condonation of the absence of the Complainant for the previous hearings does not in any way confer right on the Complainant for continual condonation of his non-appearance on 01.10.1997 also. 10. Learned Trial Magistrate while dismissing the Complaint has to take into account with the power vested in him is to be exercised judiciously. Learned Magistrate has to record the reason for not adjourning the Complaint. In this case, learned Magistrate has rightly pointed out the absence of the Complainant for the previous hearings and considering the conduct of the Complainant in not keeping appearance before the Court for several hearings, dismissed the Complaint. This Court is of the view that there has been proper exercise of judicial discretion by the Trial Magistrate in dismissing the Complaint and that there is no reason warranting interference. 11. Praying for setting aside the Judgment and restoration of the Complaint, learned counsel for the Appellant has submitted that the case is almost ended and pending in the argument stage and prays for allowing of the Appeal. The Cheque transaction arises out of the business transaction. At this distant point of time, the Appellant / Complainant, who are the dealers in Agricultural apparatus would have definitely taken the appropriate steps for recovery of the amount. The pendency of the case at the argument stage cannot be the reason for interference with the dismissal order of the Complaint at this distant point of time. This Appeal has no merits and is bound to fail. For the reasons stated above, this Appeal is dismissed.