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2007 DIGILAW 3285 (MAD)

Palaniappan v. T. M. T. Neelambal

2007-10-10

S.PALANIVELU

body2007
Judgment : Per S. PALANIVELU, J. 1. The appellant is the complainant before the learned District Munaif / Judicial Magistrate, Rasipuram, where he presented a private complaint under Section 138 of the Negotiable Instruments Act against the respondents / accused which was taken on file in C.C. Nos. 13 of 2006 and 12 of 2006 respectively, which was based upon a cheque delivered by the accused which was dishonoured. 2. Since the accused was absent before the said Court, NBW was issued on the same day and it was pending. On 12.7.2007, while the complaint was taken up for hearing, the complainant was absent and hence the said Court passed an order as follows : “Complainant absent. No representation. Accused NBW Pending. Complainant appearance is very absence to report about the execution of NBW since, complainant is absent. The stage of execution of NBW could be known. Hence, this complainant is dismissed. under Section 256 Cr.P.C. Accused acquitted.” 3. Before entering into the discussion regarding proposition of law, the circumstance under which the impugned order came to be passed by the learned District Munsif /Judicial Magistrate, Rasipuram has to be seen. 4. The accused are mother and son. The entire trial was over after adducing the oral evidence on behalf of both sides. On 5.9.2006, when both the cases were posted for arguments, a petition under Section 317 Cr. P.C. was filed to condone the absence of the accused. The learned counsel for the accused filed to condone the absence of the accused. The learned counsel for the accused filed a petition in C.M.P.No. 32 of 2006 expressing the intention of the accused for settlement of the matter before the Lok Adalat and that petition was allowed by the said Court. On 15.9.2006, when the matter was posted before the Lok Adalat for settlement, it appears that since the accused did not cooperate, no settlement could be secured between the parties even after several adjournments. Hence, the failure of settlement was reported tot he Court on 23.2.2007 and the matter was posted on 16.3.2007 before the Court. On that date, the complainant was present and since the accused were absent, NBWs were issued to be executed by 27.3.2007. On 27.3.2007, the Presiding Officer was on leave and on the date of next hearing i. e. on 5.4.2007, the complainant was present and the accused were absent. NBWs were pending. On that date, the complainant was present and since the accused were absent, NBWs were issued to be executed by 27.3.2007. On 27.3.2007, the Presiding Officer was on leave and on the date of next hearing i. e. on 5.4.2007, the complainant was present and the accused were absent. NBWs were pending. Thereafter the matter was again adjourned to 12.7.2007. On that date, the complaints were dismissed. 5. The above said events would go a long way to show that the complainant has actively participated in the proceedings and he was anxious to get the amicable settlement before the Lok Adalet. Since there was no settlement, the accused ignored the proceedings thereafter and they had not appeared before the Court for considerable time. 6. In these circumstances, the learned Presiding Officer passed a cryptic order without mentioning the above said events. He should have specifically mentioned in his order, to make it as a speaking one, that because of the non co-operation of the complaint, the complaint would meet its ill-fate, namely, dismissal. If on previous occasions, the complainant was continuously absent, it should have also round place in the order. If in case, on 12.7.2007 the complainant was absent, the next course open to the Presiding Officer is to issue notice to him. The order is to the effect that the complainants appearance is very essence to report about the execution of NBWs. Even if this observation is termed to be a reasonable one, still the discretion conferred on his by Section 256 Cr. P.C. should have been exercised by him judiciously and he should not have dismissed the complaint abruptly without taking recourse to the settled procedure recognised by law. The failure on the part of the judicial officer in adopting proper procedure in this matter and non observance of such procedure would in and the amount to denial of proper justice tot he litigants. Even though there is no specific mentioning of procedure in detail in the provision, the discretion ought to have been exercised fairly without impairing the cause of administration of criminal justice. 7. The learned counsel for the petitioner would draw the attention of this Court in the decision of the Honourable Supreme Court in Associated Cement Co. Even though there is no specific mentioning of procedure in detail in the provision, the discretion ought to have been exercised fairly without impairing the cause of administration of criminal justice. 7. The learned counsel for the petitioner would draw the attention of this Court in the decision of the Honourable Supreme Court in Associated Cement Co. Ltd. v. Keshaanand (1998) SCC (Cr) 475, wherein the Lordships have held as follows : “When the Court notices that the complaint is absent on a particular day the Court must reconsider whether personal attendance of the complaint 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 complaint 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. 8. This Court in a decision reported in Ramesh v. Periyasamy and Ors. (1999) 2 MWN (Cr.) 261 has considered that the circumstances in which NBW was pending against the accused. The act of the Court in dismissing the complaint for non appearance of the complainant is not proper and it is also observed therein that any exercise of discretion should be tempered by judicial conscience, reasonableness and must be with a touch of desire to alleviate sufferings of those who knock at the doors of Court. 9. In another decision, in Kumaresan v. Girirajan (1999) I CTC 371, this Court has held that merely because of the absence of the complainant before the Court, dismissing the complaint by the Court is an irregular exercise of power and the Magistrate dismissing complaint for non-appearance of complainant without mentioning in order as to issue of process date of hearings appearance of accused on that day whether complaint was present on previous date of hearing etc. is held to be abuse of power, capricious and arbitrary, it is but sacrifice of justice at alter of frenzied disposal. 10. is held to be abuse of power, capricious and arbitrary, it is but sacrifice of justice at alter of frenzied disposal. 10. This Court, in Kamalanathan v. Sampath has observed that when the order does not states whether the complainant was absent on previous hearing, the exercise of the jurisdiction under Section 256 Cr. P.C. should be treated to be capricious and unjustifiably arbitrary. 11. In Sri Shanmugha Priya Finance and Chits rep. by Its Manager N. Murugesh v. V. Durairaja (1999) 2 MWN (Crl.) 89 this Court has taken identical view that in the absence of the finding of the Presiding Officer as tot he presence of the complainant in the previous hearing and when justifying the dismissal order in the proceedings for non-appearance of the complainant, it should be held that the judicial power was not exercised in proper manner. 12. In R. Murali v. D. Udhayakumar (2007) 1 MLJ (Crl) 981 after analysing the circumstances of the similar matter, learned judge of this Court has observed that Order under Section 256 Cr.P.C. was passed mechanically without considering whether personal attendance of the complainant is necessary for the progress of the case. 13. This Court, in S. Ravichandran v. V. Pandiya (2003) 1 LW (Crl.) 273 has held as follows : “The trial Court is cautioned against the order of dismissal of the complainant in the absence of the complainant and hereafter shall take sufficient care and caution prior to passing such orders, without any ground for passing such order under the provision of which the same has been passed or without assigning valid or tangible reasons in support of the order passed and that the parameters of the dictum of law as held by Apex Court in its judgement rendered in Associated Cement Co. Limited v. Keshvanand ( AIR 1998 SC 596 ) should be scrupulously followed by the Courts.” 14. In identical circumstance this Court in Judgement dated 20.9.2007 in Crl. A. Nos. Limited v. Keshvanand ( AIR 1998 SC 596 ) should be scrupulously followed by the Courts.” 14. In identical circumstance this Court in Judgement dated 20.9.2007 in Crl. A. Nos. 858 to 864 of 2007 has held that the proper course to be adopted by the learned Judicial Magistrate is that when the complaint is taken up for hearing, if the complainants were not present before the Court, it is incumbent upon the Presiding Officer to issue notice to the complainant and without issuance of such notice, adopting the procedure of dismissing the complaint under Section 256 (1) Cr.P.C. is not at all appreciable. 15. Even though the power is conferred upon the Judicial Magistrate under Section 256 (1) Cr. P.C. to acquit the accused, in the absence of the complainant, the said power could not be stated to be absolute but subject to certain limitation. Even though the Section does not specifically mention about the issuance of notice to the complainant before acquitting the accused, in order to afford opportunity to the complainant for his appearance, the Court shall issue notice to him. 16. The above said decisions would throw much light on the subject. The observations, findings and principles formulated in the above said decisions should be scrupulously followed by the judicial officers who are dealing with the complaint, particularly while the matter is coming up before them, whether the complainant is present or not. The legal duty is cast upon them to record the reasons in the order manifestly as to the appearance of complainant on the previous hearings. The order should also contain the reasons for the presence of the complainant for a particular hearing and whether it is a necessary one. If the presence of the complainant is not necessary in a particular hearing, they have to follow the procedure laid down as per the legal principles hearing, they have to follow the procedure laid down as per the legal principles set out in the above said decisions. The Presiding Officer shall apply reins to his mental attitude in acting in a hurried manner, indisposing the came, while the complainant was not present before them when the matter was taken up. By his experience and by the conduct of the complainant during the previous hearings, he can very well as certain the intention of the complainant whether he wanted to ignore the proceedings. By his experience and by the conduct of the complainant during the previous hearings, he can very well as certain the intention of the complainant whether he wanted to ignore the proceedings. What every maybe, if once the complainant was absent before him, he has to issue notice to him for his appearance. There should be every attempt on the part of the Presiding officer to renderable justice. No doubt, the litigants expect the early disposal of the matters and it may not be fair on the part of the Courts to show the disposal in violation of the settled legal propositions and procedure. The administration of criminal justice system will suffer if sufficient opportunities were not afforded to the parties. 17. The learned counsel for the appellant also cited the decision of the Kerala High Court reported in Don Dosco v. Partech Computers Limited & Others (2005) MLJ (Crl) 900 (Ker) in which it is held that no notice is necessary in the appeal to accused when the matter was to be remanded. 18. In the cases on hand, the NBWs were pending and the accused had not appeared before the Court and there could not have been any implement for the Court to issue notice to the complainant and to adjourn the case to some other date. The Court had got every opportunity to infer the necessity of complainant on the particular hearing. 19. In these circumstances valid grounds are available to allow the above appeals. Since the matter is between the Court and the appellant, there is not need to hear the other side. 20. In fine, these appeals are allowed and the learned Judicial Magistrate Rasipuram is directed to follow the guidelines formulated in the decisions cited supra. He is directed to restore the complaints to his file and to proceed them in accordance with law. Consequently, connected Criminal Original Petitions are closed.