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2006 DIGILAW 1706 (MAD)

AV. Balu v. K. Jeyakumar

2006-07-07

R.REGUPATHI

body2006
Judgment : Per R. REGUPATHI, J. 1. The appellant is the complainant. A private complaint was preferred by him against the respondent/accused before the learned Judicial Magistrate for an offence punishable under Section 138 of Negotiable Instruments Act. The said complaint was taken on file on 25.9.2001 and after issuing process, the accused was appearing before the Court. On 16.7.2004, the case was posted for continuation of chief examination of the complainant and at that time, when the case was called, the complainant was absent and the accused was present. Therefore, an order has been passed under Section 26 Cr.P.C., dismissing the private complaint. Aggrieved against that order, the present appeal has been preferred by the complainant. 2. I have heard the learned counsel for the appellant as well as the respondent. 3. Learned counsel for the appellant submits that the case has been initiated during the year 2001 and nearly for a period of three years, the complainant was continuously appearing and the case was getting adjourned for one reason or the other. Under such circumstances, the complaint was absent on the date of passing of the impugned order. The learned Judicial Magistrate would have given an opportunity to the complainant, instead erroneously without application of mind, has dismissed the private complaint. The amount involved in the cheque was Rs.32,000/- If the private complaint is not restored, heavy prejudice will be caused to the appellant. On the other hand, if the case is restored, the complainant may have a chance to prosecute the case without any default. 4. Learned counsel for the respondent submitted that the order passed by the learned Judicial Magistrate is unassailable and the case has been dismissed as the appellant was absent on that day. 5. I have perused the materials available on record. It has been held by the Apex Court in Associated Cement Co. Ltd. v. Keshvanand AIR 1998 SC 596 ,: (1998) 1 SCC 687 : (1998) MLJ (Crl) 170 as follows: ,Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the 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 notices that the complainant is absent on a particular day 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 complainant on that day was quite unnecessary, then resorting the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.- 6. In view of the principles laid down by the Apex Court, I am of the opinion that this is a fit case to set aside the orders passed by the learned Judicial Magistrate, Lalgudi in order to give a chance to the petitioner to prosecutes his case. 7. Accordingly, the order passed by the learned Judicial Magistrate, Lalgudi, Trichy, in C.C.No.35 of 2002, dated 16.7.2004 is set aside and the learned Judicial Magistrate is directed to restore the private complaint on file and to proceed with the case in accordance with law. Since, the case has been filed during the year 2002, the learned Judicial Magistrate, Lalgudi, is directed to give priority to the present case for early disposal and this criminal appeal stands accordingly allowed.