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2006 DIGILAW 744 (MAD)

R. Murali v. D. Udhayakumar

2006-03-16

K.N.BASHA

body2006
Judgment : Per K. N. BASHA, J. 1. This appeal against acquittal is preferred by the complainant in C.C. No. 309 of 2000 on the file of learned Judicial Magistate No. V, Salem challenging the order dated 13.10.2000, dismissing the complaint filed by him on the ground of non-appearance in a case under Section 138 of the Negotiable instruments Act. 2. The learned counsel for the petitioner submits that in spite of his best efforts, the accused/respondent has evaded the receipt of the notice. The appeal itself relates to the year 2000. Hence, N. Doraisamy appointed by this Court as Amicus Curiae. The learned counsel for the appellant undertakes to serve proper notice on the respondent by taking effective steps in order to make the respondent to appear for the trial. 3. A perusal of the records discloses that the learned Magistrate called the above said C.C. No. 309 of 2000 filed by the appellant/ complainant on 13.10.2000 and dismissed the complaint on the ground of non-appearance of the complainant. In this case, the learned Magistrate has passed a mechanical order simply on the ground that the complainant was not present on the date of hearing either in person or by his pleader and acquitted the accused. The order of the learned Magistrate, on the face of it, is arbitrary and illegal. 4. It is well settled by the Hon‘ble SupremeCourt of India,in Associated Cement Company Limited v. Keshvanand AIR 1998 SC p.596,(1998) MLJ (Crl) SC 170 : (1998) 1 SCC 687 that, “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 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. 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 to the step of axing down the complaint may not be a proper exercise of the power envisaged in the Section. The discretion must, there, be exercised judicially and fairly without impairing the cause of administration of criminal justice” 5. As per the preposition of law laid down by the Apex Court, I have no other alternative, except to allow the appeal and to set aside the order of acquittal passed by the learned Magistrate under Section 256 Cr.P.C. 6. Accordingly, the appeal is allowed and the order passed by the learned Magistrate is set aside. The learned Magistrate shall expedite the trial and complete the same within a period ofsix months from the date of receipt of copy of this order.