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2012 DIGILAW 2289 (MAD)

M. Dhandapani v. Hemalatha

2012-06-06

R.MALA

body2012
JUDGMENT 1. The Criminal Appeal arises out of the judgment of acquittal of the respondent/accused by invoking Section 256 Cr.P.C. in C.C.No.495 of 2003 on 25.08.2006 by the learned Judicial Magistrate No.VI, Coimbatore. 2. The appellant herein as a complainant filed a complaint against the respondent/accused under Section 138 of Negotiable Instruments Act, stating that the complainant is carrying on the business of dealing in properties as Real estate agent. The respondent/accused herein approached the complainant to find suitable buyer for the vacant site stood in the name of her son and the accused also agreed to pay Rs.21,000/- as commission charge for the service rendered by the appellant herein. The appellant finalised the property as requested by the respondent/accused and on 15.11.2002, the sale deed was registered. Subsequently, the accused issued a cheque dated 10.01.2003, bearing No.714909 for Rs.21,000/- drawn on Indian Bank, Stock Exchange Buildings, Coimbatore, in favour of the appellant/complainant. The said cheque has been presented in the Bank for encashment on 17.02.2003, which was returned vide memo dated 18.02.2003 on the ground that "insufficient funds". The factum of dishonour of cheque was informed to the complainant by the Bank on 19.02.2003. Hence, the appellant/complainant issued a legal notice to the respondent/accused on 20.02.2003. The accused received the same, but he neither give any reply nor repaid the amount due. Hence, the appellant/complainant filed a complaint against the respondent/accused under Section 138 of Negotiable Instruments Act. 3. Since the complainant was not present before the trial Court, the trial Court disposed of the matter under Section 256 Cr.P.C., in spite of accused absent, against which, the appellant/complainant preferred this appeal. 4. Mr.P.Chandrasekaran, learned counsel appearing for the appellant submitted that the complaint was taken on file on 08.08.2003 and the first hearing was posted on 19.12.2003. From 19.12.2003 onwards, the appellant appeared before the Court. Since the accused did not appear before the Court, Non-bailable warrant was issued against the accused and the same was pending for his appearance. Again, the complaint was called on 26.04.2006 and the complainant/appellant was present and NBW was pending against the accused. Since the complainant/appellant was unable to appear before the Court on the next hearing (i.e.) on 26.07.2006, a notice was ordered to be issued to the complainant for his appearance on 25.08.2006. But the appellant/complainant has not received any notice from the trial Court. Since the complainant/appellant was unable to appear before the Court on the next hearing (i.e.) on 26.07.2006, a notice was ordered to be issued to the complainant for his appearance on 25.08.2006. But the appellant/complainant has not received any notice from the trial Court. When the complaint was called on 25.08.2006 finally, it was mentioned as follows: "Complainant is not present and representation petition was not filed and already complainant was not present on 26.07.2006 and notice was issued to the complainant. Hence, the case is disposed of under section 256 Cr.P.C. inspite of complainant's absent." 5. It is further submitted by learned counsel for the appellant/complainant that appearance of the appellant is not necessary on the hearing dates, since N.B.W. is pending against the respondent/accused. After appearance of the accused, the appellant will get into the witness box and depose against the accused. That factum has not been considered by the learned trial Judge. The trial Court had taken it as a chance of non appearance of the complainant and disposed of the complaint by invoking Section 256 of Cr.P.C. He relied upon the following judgments reported in (i) (1998) 1 SCC 687 (Associated cement Co. Ltd. v. Keshvanand) and (ii) 2004 (1) CTC 689 (R.Sekar v. S.Rajendran) and submitted that the acquittal order passed by the trial Court in favour of the accused, due to non-appearance of the complainant, is not proper and the discretion is not properly exercised. Hence, he prayed for setting aside the order and the matter may be remitted back to the learned Judicial Magistrate's Court No.VI, Coimbatore, to dispose of the case on merits after giving opportunity to both sides. 6. Mr.Rajarajan, learned counsel appearing for the respondent would submit that for delaying tactics, the complainant was not present. Since the complaint was dismissed by invoking Section 256 Cr.P.C., he has come forward with this appeal for harassing respondent/accused. Hence, he prayed for dismissal of the appeal. 7. On perusal of records, the appellant/complainant herein has preferred a complaint on 08.04.2003, which was taken on file on 08.08.2003 after sworn statement of the complainant has been recorded and summons has been issued to the respondent/accused. Then, the first hearing was posted on 19.12.2003. On that date, it was mentioned that the complainant is present and the accused, who received summons, is not present. Hence, NBW has been issued to the accused. Then, the first hearing was posted on 19.12.2003. On that date, it was mentioned that the complainant is present and the accused, who received summons, is not present. Hence, NBW has been issued to the accused. On 24.06.2004, the accused surrendered and warrant has been recalled. On 14.07.2004, accused called absent and since the accused did not appear and there was no representation on behalf of him, NBW has been issued. From 14.07.2004 onwards, the complainant was present on several dates and the accused was not present. But whereas, the complainant/appellant was present on each hearings, merely because he did not appear on two hearings (i.e.) on 26.07.2006 and 25.08.2006, the learned trial Judge disposed of the complaint by invoking Section 256 Cr.P.C. 8. At this juncture, it is appropriate to incorporate Section 256 Cr.P.C., which reads as follows: "256. Non-appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. " In the above Section of Cr.P.C., it was specifically mentioned that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. On perusal of record, it shows that an N.B.W. issued against the respondent/accused is pending and hence, the appearance of the complainant is not necessary. 9. Now it is appropriate to consider the following Judgments relied upon by the learned counsel for the appellant/complainant. (i) (1998) 1 SCC 687 (Associated Cement Co. On perusal of record, it shows that an N.B.W. issued against the respondent/accused is pending and hence, the appearance of the complainant is not necessary. 9. Now it is appropriate to consider the following Judgments relied upon by the learned counsel for the appellant/complainant. (i) (1998) 1 SCC 687 (Associated Cement Co. Ltd., v. Keshvanand) in para-17, it reads as follows: "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 progress of the case and also whether the situation does not justify the case being adjoined 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 therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice." (ii) 2004 (1) CTC 689 (R.Sekar v. S.Rajendran) in para-4, it reads as follows: "4.The Supreme Court in the case in Associated Cement Co. Ltd. Vs. Keshjvanand 1998 Crl.L.R. 856 has held as follows: "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. 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 date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice." Considering the above decisions, I am of the view, on the date of invoking Section 256 Cr.P.C., there is no necessity for the appearance of the appellant/complainant, since NBW is pending against the accused. So as per the view taken by this Court in 2004 (1) CTC 689 (R.Sekar v. S.Rajendran) that already NBW has been pending against the accused, appearance of the appellant/complainant is not necessary, so I am of the view, the trial Court should not have exercised its discretion but adjourned the matter to some other date when the presence of the complainant was not absolutely necessary, therefore, the order of the Magistrate is not legally sustainable and hence, it is hereby set aside. 10.In fine, (i) Criminal Appeal is allowed. (ii) Acquittal order passed by the trial Court is set aside. (iii) The matter is remitted back to the learned Judicial Magistrate's Court No.VI, Coimbatore. (iv) Both the parties are directed to appear before the trial Court on 02.07.2012. (v) The learned Judicial Magistrate is directed to dispose of the matter within a period of three months from the date of receipt of copy of this order on day to day basis. (vi) Consequently, connected Miscellaneous Petition is closed.