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2007 DIGILAW 2709 (MAD)

Balakrishnan v. Sasikumar

2007-08-27

G.RAJASURIA

body2007
Judgment :- This Criminal Original Petition is focused as against the order passed by the learned Judicial Magistrate No.1, Dindigul, in S.T.C.No.157 of 2007, dated 19.07.2007. 2. Heard the learned counsel for the petitioner. In view of the order going to be passed here under and in view of the fact that before trial Court no summons was served on the respondent, no notice to respondent/accused herein is required. 3. A resume of facts absolutely necessary and germane for the disposal of this petition would run thus: The case in S.T.C.No.157 of 2007 emerged based on the complaint filed by the complainant as against the accused under Section 138 of Negotiable Instruments Act. It appears after taking sworn statement of the petitioner the case was taken on file. However it was dismissed for non appearance of the petitioner before the trial Court on 19.07.2007. 4. It is not readily known from the order dated 19.07.2007, for what purpose the case was listed. In this connection I would like to refer to the decision of the Apex Court in ASSOCIATED CEMENT CO. LTD. v. KESHAVANAND ((1998) 1 Supreme Court Cases 687). An excerpt for it would run thus: "17. Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The 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. The 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 to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. 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 therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice." It is therefore clear that the Magistrate is not expected to dismiss the case for non appearance only and the Magistrate has to set out in his order for what purpose the case was posted and why the appearance of the petitioner was necessary on the date of dismissal. Here no such reasons are found specified in the order of Magistrate. 5. Hence, in these facts and circumstances of the case, the order of the Judicial Magistrate No.I, Dindigul, in S.T.C.No.157 of 2007, dated 19.07.2007 is set aside and the matter is remitted back to the Judicial Magistrate No.I, Dindigul, on condition that the petitioner shall pay a sum of Rs.300/-(Rupees Three Hundred only) to the Tamil Nadu Mediation and Conciliation Centre, attached to this Bench, within one week from the date of receipt of the copy of this order. Hereafter, the petitioner shall not absent during the hearings of the case.