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2010 DIGILAW 2788 (MAD)

O. C. Periyasamy v. D. Venkatesan @ Ravi

2010-07-09

T.SUDANTHIRAM

body2010
Judgment :- 1. The revision petitioner herein filed a private complaint before the learned Judicial Magistrate No.1, Erode against the accused for the offence under Section 138 of Negotiable Instruments Act. After the said complaint being filed, it was posted on 12.05.2010 for recording the sworn statement of the complainant. As the complainant was not present, it was adjourned to 17.05.2010. Even on that day, since the complainant was not present, the learned Magistrate dismissed the complaint. Aggrieved by the said order of the learned Magistrate, the present criminal revision has been preferred before this Court. 2. Learned counsel for the petitioner submits that the complainant was attending the Court regularly without fail, but he could not appear before the Court on 12.05.2010 and 17.05.2010, as he fell sick. Therefore, the complainant has not filed any application before learned Magistrate. Learned counsel for the petitioner also submits that the complainant must be given a chance to proceed with this case. Learned counsel for the petitioner also submitted that the learned Magistrate, after receiving the complaint, has no power to dismiss the same without recording the sworn statement of the complainant. Any dismissal of the complaint could be only under Section 203 of Cr.P.C. Learned counsel for the petitioner further contended that before dismissing the complaint, the learned Magistrate could have sent any notice to the complainant. 3. This Court considered the submissions made by the learned counsel for the petitioner and perused the materials available on record. 4. Under Section 190(1)(a) Cr.P.C., the Magistrate has to receive the complaint and thereafter, under Section 200 Cr.P.C. shall examine upon oath of the complainant and the witnesses present, if any, for recording the sworn statement of the complainant and other witnesses and the Magistrate may take cognizance of the offences or he may dismiss the complaint under Section 203 Cr.P.C. on considering the oath of the complainant and witnesses. Of course, as pointed out by the learned counsel for the petitioner, there is no specific provision for dismissing the complaint for the absence of the complainant before recording the sworn statement of the complainant. At the same time, this Court is not agreeing with the contention of the learned counsel for the petitioner that the complaint cannot be dismissed before recording the sworn statement even if the complainant is absent before the Court. At the same time, this Court is not agreeing with the contention of the learned counsel for the petitioner that the complaint cannot be dismissed before recording the sworn statement even if the complainant is absent before the Court. After taking cognizance of the complaint and issuing summons to the accused, if the complainant is absent, as per summons case procedure, the Magistrate may invoke Section 256 Cr.P.C. and acquit the accused. After filing the complaint and the Magistrate, on receiving the complaint fixes any date for recording the sworn statement of the complainant and the complainant is absent on that date and also on the subsequent dates fixed for the same, though there is no specific provision for discharging the accused, it would not be proper and justifiable to say that the Court has to wait compulsorily and indefinitely for the appearance of the complainant. In such situation, the Magistrate may close the complaint, which would not amount to acquittal of the accused. Therefore, in this case, the learned Magistrate, by closing the complaint, has not committed any illegality. At the same time, this Court considers the submissions made by the learned counsel for the petitioner that the representative of the complainant could not appear before the Court due to illness. 5. In the interests of justice that the complainant must be given a chance to put forth his case and he should not be stopped at the threshold, the order passed by the learned Judicial Magistrate No.1, Erode made in C.M.P. No. 2170 of 2010 dated 17.05.2010, dismissing the complaint is set aside. Therefore, the criminal revision petition is allowed. The complainant is directed to appear before the learned Magistrate within a period of four weeks from the date of receipt of copy of this order.