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2012 DIGILAW 2915 (MAD)

L. P. Subramanian v. S. K. Ranganathan

2012-07-10

R.MALA

body2012
Judgment :- 1. The criminal appeal arises out of the judgment of acquittal dated 16.12.2010 made in C.C.No.3228 of 2005 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai. 2. Learned counsel for the appellant would submit that the appellant herein as a complainant preferred a private complaint against the respondent/accused under Sections 405, 409 and 420 IPC, which was taken on file on 13.04.2005. In the trial Court, almost 70 hearings were over and the complainant was present in 55 hearings and chief-examination of P.W.1 and P.W.2 has also been completed. On the particular hearing date (i.e.) on 16.12.2010, complainant/appellant herein was not present. Therefore, the learned Magistrate invoking Section 256 Cr.P.C. dismissed the complaint and acquitted the accused/respondent. He further submitted that he is ready to prosecute the case within the stipulated time granted by this Court and hence, he prayed for allowing of this appeal. 3. Learned counsel for the respondent submitted that the presence of the accused/respondent has been dispensed with by this Court due to his health condition. Since the facts disclosed by P.W.1 and P.W.2 are one and the same, the matter ought to have been posted for cross-examination of both P.W.1 and P.W.2 on the same day. But they were not present on the same day, since P.W.2 was abroad at the time of hearing. Hence, he prayed for dismissal of the appeal. 4. Considered the rival submissions made on both sides and the materials available on record. 5. On perusal of record, it is seen that the appellant herein as a complainant preferred a private complaint under Section 200 Cr.P.C. and the Metropolitan Magistrate's Court took cognizable offence under Section 409 Cr.P.C., which was forwarded to the Additional Deputy Commissioner of Police, Central Crime Branch, Egmore, Chennai-8, for necessary action. He registered a case in Crime No.491/2002 under Section 409 IPC and took up investigation. After enquiry, final report received by police referring the case is of civil in nature. Then the appellant herein filed protest application, which was taken on file as C.M.P.No.740 of 2005. After hearing both sides, the learned Magistrate took the complaint on file under Section 409 IPC against the accused on 13.04.2005. 6. Admittedly, the case was pending from 2005 onwards. Totally, there are 70 hearings, out of which, on 55 hearings the complainant/appellant was present and the chief-examination of P.W.1 and P.W.2 were over. After hearing both sides, the learned Magistrate took the complaint on file under Section 409 IPC against the accused on 13.04.2005. 6. Admittedly, the case was pending from 2005 onwards. Totally, there are 70 hearings, out of which, on 55 hearings the complainant/appellant was present and the chief-examination of P.W.1 and P.W.2 were over. Complainant was also present on the previous hearing dated 18.11.2010. On the particular date (i.e.) on 16.12.2010, the complainant called absent and no representation on behalf of the complainant. Accused and his counsel were present and the presence of accused was dispensed with by this Court. Hence, the trial Court invoking Section 256 Cr.P.C. dismissed the complaint and acquitted the accused. 7. 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. " 8. As per the decision reported in 2004 (1) CTC 689 (R.Sekar v. S.Rajendran) in para-4, it was held 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 decision along with Section 256 Cr.P.C., it is a discretion of the Magistrate to adjourn the matter or dispose of the matter, the Magistrate has to exercise his discretion judicially. But here, the discretion exercised by the learned Magistrate is not a reasonable one, since the appellant/complainant has been present before the trial Court nearly 55 hearings and also previous hearing. It is to be noted that the case was pending from 2005 onwards. Considering such long pendency, I am of the view, it is a fit case to remit the matter back to the trial Court, after setting aside the judgment of acquittal. 9. In fine, (i) The Criminal Appeal is allowed. (ii) Acquittal order passed by the trial Court is set aside. (iii) The matter is remitted back to the XI Metropolitan Magistrate, Saidapet, Chennai, with a direction to dispose of the matter within two months from the date of receipt of a copy of this order. (iv) The appellant/complainant is directed to produce the witnesses before the trial Court for cross-examination on the same day. (v) Both the appellant and the respondent herein are directed to co-operate with the Court for earlier disposal. (vi) The personal appearance of the respondent/accused is dispensed with due to his health condition. (iv) The appellant/complainant is directed to produce the witnesses before the trial Court for cross-examination on the same day. (v) Both the appellant and the respondent herein are directed to co-operate with the Court for earlier disposal. (vi) The personal appearance of the respondent/accused is dispensed with due to his health condition. He is directed to appear before the Court, whenever he is required.