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2005 DIGILAW 1409 (MAD)

K. K. Subramaniam v. P. S. Suresh Babu

2005-08-23

M.THANIKACHALAM

body2005
Judgment :- (Appeal filed under Section 256 Cr.P.C. against the Judgment in C.C.No.24/1995 on the file of the Judicial Magistrate No.I, Gobichettipalayam) The complainant, in C.C.No.24/1995 on the file of Judicial Magistrate No.I, Gobichettipalayam is the appellant. 2. The appellant preferred a private complaint against the respondent/accused, seeking appropriate punishment for the alleged offences, under Sec.138 of Negotiable Instruments Act and Sec.420 I.P.C, alleging that the respondent, who had dealings with the complainant, has to pay a sum of Rs.2,21,069.08, that in order to discharge the said liability, he had issued a cheque on 9.12.1994, that when the cheque was tendered for collection, the same was bounced for the reason "Exceeds arrangement", that thereafter, even despite the issue of statutory notice, failed to pay the cheque amount and that for the offences, committed under Section 138 of Negotiable Instruments Act, he is to be dealt with, according to law. 3. On the basis of the written complaint, preferred by the holder of the cheque, after recording sworn statement, the trial Court took the case on file, taking cognizance and posted the same on 15.2.1995, thereafter, adjourned the case for further hearing. 4. When the case was posted on 20.11.1998, neither the complainant nor his counsel was present. Therefore, the trial Court, invoking the provisions available in Section 256 of Criminal Procedure Code, dismissed the complaint, acquitting the accused, as per the Judgment dated 20.11.1998, which is under challenge in this appeal. 5. Heard Mr. P.R. Balasubramanian, the learned counsel for the appellant. 6. It is the case of the appellant, that the respondent/accused had business transactions with him between 3.11.1993 and 21.9.1994, and as per the averments in the complaint, there was a balance of Rs.2,21,069.08. For that amount, it seems a cheque has been issued by the accused, which was not honoured, when tendered for collection, resulting a private complaint, as said above, which was dismissed under Section 256 of Criminal Procedure Code. 7. The learned counsel for the appellant submits that the complainant/appellant was absent only for one hearing and for his non-appearance, when the same is also not mandate, dismissal of the complaint, by invoking Section 256 Cr.P.C may not be proper. 7. The learned counsel for the appellant submits that the complainant/appellant was absent only for one hearing and for his non-appearance, when the same is also not mandate, dismissal of the complaint, by invoking Section 256 Cr.P.C may not be proper. It is the further submission of the learned counsel for the appellant, that in order to give a chance for the appellant, the acquittal order, under Section 256 Cr.P.C should be set aside, which convinces me, considering the hasty action, taken by the trial Court. 8. As seen from the records, though the case was taken on file on 15.2.1995, after appearance of the accused, he failed to appear before the Court, resulting issuance of Non-Bailable Warrant. The Notes paper maintained by the trial Court would reveal further that lastly, the case was adjourned from 23.10.1998 to 20.11.1998, not for the appearance of the complainant alone to proceed with the trial of the case, but for the execution of the Non-Bailable Warrant against the accused. Therefore, when the accused himself has not appeared, when Non-Bailable Warrant was pending, where the Court had directed to address the authority concerned, to execute the non-bailable warrant, the absence of the complainant should not have been considered as serious one, that too, to invoke Section 256 Criminal Procedure Code. Mere absence of the complainant on 20.11.1998, when the accused himself was absent and when non-bailable warrant is pending, no earthly purpose could be served by his presence. The trial Court, without considering this fact, the stage of the case, whether the presence of the complainant is so essential or not, taking advantage of the provisions available in Sec.256 Cr.P.C, to have easy disposal, had chosen the short cut method of disposing the case, which should be discouraged. If the case was ready to be proceeded further, such as, examining the witnesses, accused being present, then the absence of the complainant could be taken note of seriously. In this context, we have see Section 256 of Criminal Procedure Code. 9. It is no doubt true, that Sec.256 Cr.P.C empowers the Magistrate, for the non-appearance of the complainant, he may acquit the accused, which is not the only mandate of Section compulsorily. In this context, we have see Section 256 of Criminal Procedure Code. 9. It is no doubt true, that Sec.256 Cr.P.C empowers the Magistrate, for the non-appearance of the complainant, he may acquit the accused, which is not the only mandate of Section compulsorily. As said above, in this case, when non-bailable warrant was pending against the accused, acquitting the accused, for non-appearance of the complainant, can not be proper and in my opinion, it is against the provisions of Law also, considering the other options available in the Section. The Section empowers the Magistrate, even in the absence of the complainant to adjourn the hearing of the case, to some other day, for the reasons available, which is in the opinion of the Court proper. Here, the reason available was plenty and even I can say, because of the fact, in the previous hearing, a direction has been issued to address the authority concerned, for the execution of the Non-bailable warrant. When the non-bailable warrant issued by the Court has not been executed, by the concerned authorities, the Court should have waited for the execution of the non-bailable warrant and after securing the accused, if the complainant absented himself, chronically, then alone, the Court should have exercised the power available under Section 256 Cr.P.C, which could be further seen, from the proviso. The proviso says, where the complainant is represented by a counsel, 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. This right, option, discretion given in the proviso to the Magistrate should have been exercised, by the Magistrate in this case, because of the fact, that the personal attendance of the complainant was not necessary on the date of dismissal in this case. Instead of considering all these facts and adjourning the case, awaiting execution of non-bailable warrant, dismissal of the case by the Judicial Magistrate, in my considered opinion, is erroneous, required to be set aside, since there was failure of duty on the part of Court also. It is the duty of the Court, to take effective steps, to execute the Non-Bailable Warrant, by reminding the police, which was not correctly followed. 10. It is the duty of the Court, to take effective steps, to execute the Non-Bailable Warrant, by reminding the police, which was not correctly followed. 10. Code of Criminal Procedure confers powers upon the Magistrate, to be exercised, for the benefit of the accused and the complainant and not for the benefit of disposal of the case alone, choosing or selecting the short cut method, that too, when there was no fault on the part of the complainant. The case was for the non-payment of amount, for which, a cheque has been issued. Section 138 of Negotiable Instrument contemplates, even compensation twice the amount of cheque amount, thereby, enabling the holder of the cheque to receive the amount, without resorting the civil litigation. This benefit is extended to the commercial community, considering the fact, that the business should grow and faith should not be destroyed in the commercial transaction making easy procedure, for realisation of the debt. If this kind of cases is dismissed, like this for disposal purpose alone, forgetting the substantial right of the parties, thereby, depriving the right of the holder of the cheque, from realising the amount or directing the accused to pay the amount by way of compensation, then the very purpose of Section 138 of Negotiable Instruments Act would be frustrated, for which, the legal Institution should not be the cause. While the Court exercises its power, when the right is likely to be affected, it must be very very cautious. When that power is exercised, it should remember what would be the consequence. If the power is to be exercised against a person detriment to his interest, the Court should refrain itself, using the same forthwith, then affording opportunity to the parties, then only, it should be exercised in a case, where, it is unavoidable, such as, where the complainant has not taken any steps, to secure the accused, such as payment of process fees, if any, or to conduct the case, by producing witnesses etc., and certainly , not in the case of this kind, where Non-Bailable warrant was pending. 11. It is also held by the Apex Court in Associated Cement Co Limited vs Keshjvanand(1998 Crl.L.R.856) that - "..... 11. It is also held by the Apex Court in Associated Cement Co Limited vs Keshjvanand(1998 Crl.L.R.856) that - "..... if the presence of the complainant 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". 12. In this case, the trial Court had squarely offended the above observation of the Apex Court, in addition to, not exercising the discretion available in Section 256 Cr.P.C., thereby impairing the cause of administration of criminal justice. 13. For the foregoing reasons, considering the scope of Section 256 Cr.P.C, and the stage of the case, before the trial Court in this case, my considered opinion, is that the Magistrate has exercised the power under Section 256 Cr.P.C, erroneously, depriving the right of the holder of the cheque, viz., the complainant/appellant, which should be set aside, thereby, giving a chance for the parties, to agitate their right on merit. Thus, the appeal deserves acceptance. 14. The appeal is allowed, setting aside the order of the trial Court dated 20.11.1998, under which the accused was acquitted and the matter is remanded back to the trial Court for fresh disposal, according to law. Consequently, the connected Crl.O.P is allowed. 15. The trial Court is directed to restore the case to its file, and giving notice to the accused, further directed to dispose the case, in accordance with law, on merit, instead of choosing the short cut method, within three months from the date of receipt of this order along with the records, positively.