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2014 DIGILAW 2197 (MAD)

T. N. Murugan v. Raimon Jebaraj

2014-07-21

M.VENUGOPAL

body2014
JUDGMENT The appellant/complainant has projected the present Criminal Appeal before this Court in calling for the records in Calendar Case No.203 of 2007 on the file of the learned Judicial Magistrate, Tirukoilur and to examine the same. Further, he has sought for the relief of setting aside the order of closure of complaint under Section 256(1) of the Criminal Procedure Code leading to the acquittal of the respondent/accused. 2. The learned Judicial Magistrate, Tirukoilur, on 20.8.2010, in C.C.No.203 of 2007 had passed the following order “Both parties called absent. Complainant called absent from 21.5.2010. No representation. Complaint closed under Section 256(1) of Cr.P.C.” 3. Upon recording sworn statement of the appellant and upon perusal of the records annexed with the complaint, the trial Court was pleased to take cognizance of the complaint on file on 13.8.2007 in C.C.No.203 of 2007 and issued summons to the respondent/accused. 4. Learned counsel for the appellant/complainant strenuously submits that the main case in C.C.No.203 of 2007 on the file of the trial Court was posted for examination of the witnesses and in fact, the appellant/complainant was examined as P.W.1 as early as on 25.7.2008 and also marked Exhibits on his side. Thereafter, the matter stood posted for cross examination as well as examination of other witnesses. 5. Learned counsel for the appellant/complainant projects his argument that the respondent/accused had repeatedly absented himself from appearing before the Court on several occasions resulting in issuing of non-bailable warrants and bailable warrants for more than four time which had affected the progress of the case. 6. Learned counsel for the appellant/complainant takes a vital plea that the appellant/complainant during March 2010, fell seriously ill out of Jaundice and became bedridden for about four months and as such, he was under local medication. As a matter of fact, the illness of the appellant/complainant was duly informed to his counsel and in the meanwhile, C.C.No.203 of 2007 on the file of the trial Court was called on 21.5.2010, 19.7.2010 and 10.8.2010 respectively. On those three hearing dates, the appellant was unable to appear before the Court because of his sickness due to Jaundice. 7. As a matter of fact, the illness of the appellant/complainant was duly informed to his counsel and in the meanwhile, C.C.No.203 of 2007 on the file of the trial Court was called on 21.5.2010, 19.7.2010 and 10.8.2010 respectively. On those three hearing dates, the appellant was unable to appear before the Court because of his sickness due to Jaundice. 7. Advancing his arguments, the Learned counsel for the appellant/complainant contends that on 21.5.2010, 19.7.2010 and 10.8.2010 the main case C.C.No.203 of 2007 on the file of the trial Court was posted for the examination of other witnesses and as such, the presence of the appellant/complainant was not eventually necessary on all the hearing days. 8. It transpires that the trial Court in C.C.No.203 of 2007 on 20.8.2010 had recorded “Both parties called absent. Complainant called absent from 21.5.2010. No representation. Complaint closed under Section 256(1) of Cr.P.C.” 9. The main grievance of the Learned counsel for the appellant is that when the main case C.C.No.203 of 2007 was posted on 20.8.2010 for the purpose of examination of other witnesses, then the presence of the appellant/complainant was not essentially necessary one and in this regard, the trial Court had closed the complaint under Section 256(1) of the Criminal Procedure Code, based on the fact that there was no representation and both parties were called absent. 10. Per contra, the Learned counsel for the respondent/accused submits that the appellant/complainant periodically remained absent on two earlier occasions and even on 20.8.2010, the appellant/complainant was not present and ultimately because of no representation, the trial Court was forced to close the complaint in terms of Section 256(1) of the Criminal Procedure Code. 11. It is to be noted that Section 256 of the Criminal Procedure Code applies when a main case is posted to a date appointed for the appearance of accused or any subsequent day to which the case may be adjourned and posted for hearing. If the complainant is represented by a pleader, then his personal appearance would not be regarded as indispensable. When the complainant is absent on the day appointed for the hearing of the case, the Code does not provide for dismissal of the complaint or discharge of the accused. Because of non-appearance of the complainant, it is not necessary that an accused shall be acquitted. 12. When the complainant is absent on the day appointed for the hearing of the case, the Code does not provide for dismissal of the complaint or discharge of the accused. Because of non-appearance of the complainant, it is not necessary that an accused shall be acquitted. 12. It is true for the absence of a complainant under Section 138 of the Negotiable Instruments Act either for one or two occasions, the complaint filed by the complainant ought not to be dismissed in the interest of deliverance of substantial criminal Justice. 13. It is obligatory on the part of the complainant to be present on the date of hearing even when the respondent/accused had not appeared. If in a given case, the complainant is absent when the case was called and no reason for his absence was given, a Court of Law would naturally presume that the complainant was absent because of his lack of interest in the case. In such circumstances, the proper order to be passed by a Court of Law is only an order of acquittal. 14. That apart, a Court of Law is to see whether personal attendance/appearance of the complainant on a particular day is very much essential for the purpose of prosecuting a case to its further progress. 15. A Court of Law is to resort to the ingredients of Section 256(1) of the Criminal Procedure Code with great care, caution and circumspection. In a situation where the main case could be proceeded with even if the complainant was absent, his absence ought to be viewed with discretion and the order of acquittal ought not to be a capricious or a whimsical one. There is no gain saying of the fact that the appellant/complainant has a duty to be present on dates of hearing. However, for his non-appearance of each and every date of hearing, an order of acquittal could not be passed as per the decision of ANJALI POREL Vs. SANTHOSH GHOSH (1986 CRL.L.J. 2110 CALCUTTA). On the non-appearance of the complainant, an order of acquittal is not to be passed in every case and all surrounding attendant circumstances are to be taken into account by the learned Judicial Magistrate, who has a wide discretion in the matter. 16. SANTHOSH GHOSH (1986 CRL.L.J. 2110 CALCUTTA). On the non-appearance of the complainant, an order of acquittal is not to be passed in every case and all surrounding attendant circumstances are to be taken into account by the learned Judicial Magistrate, who has a wide discretion in the matter. 16. The learned Judicial Magistrate also has a discretion when the complainant is represented by a Lawyer, who conducts the prosecution on his behalf and if the learned Judicial Magistrate is of the opinion that personal attendance is not necessary, then he may dispense with the attendance and proceed with the case. 17. As far as the present case is concerned, the appellant/complainant on 20.8.2010, was called absent. Even the respondent/accused was called absent on the day. Furthermore, the appellant/complainant was absent from 21.5.2010. In fact, there was no representation on his behalf and ultimately the case was closed under Section 256(1) of the Criminal Procedure Code. 18. At this stage, this Court more relevantly points out that there is no provision in the Criminal Procedure Code empowering the learned Judicial Magistrate to revive the case after an order of acquittal. But when the complaint was at the initial stage of summoning of the accused, an order of learned Magistrate restoring the complaint can be sustained. In the instance case on hand, the impugned order dated 20.8.2010, does not speak of the accused being acquitted. It merely states that the complaint was closed under Section 256 of the Criminal Procedure Code. 19. In view of the fact that the appellant/complainant had stated before this Court through his counsel that he fell ill during March 2000 out of Jaundice and became severely bedridden for about four months as such was not in a position to attend the hearing dates on 21.5.2010, 19.7.2010 and 10.8.2010 and finally also remained absent on 20.8.2010, it is to be pointed out that the main case C.C.No.203 of 2007 on the file of the trial Court was posted only for examination of other witnesses. Even though presence of the Appellant/complainant is very much necessary for every hearing of the case, unless his personal attendance is dispensed with, this Court by taking a lenient and liberal view comes to an irresistible conclusion that just because the Appellant/complainant had not appeared on 20.8.2010, before the trial Court in C.C.No.203 of 2007, the case could not be closed under Section 256(1) of the Criminal Procedure Code notwithstanding the fact that the respondent/accused was also absent on the day. 20. That apart the closure of the case by the learned Judicial Magistrate in C.C.No.203 of 2007, under Section 256 of the Criminal Procedure Code for non-appearance of the complainant is akin to dismissal of the complaint for non-appearance of the complainant and the remedy open to the aggrieved party is to prefer an Appeal. In this connection, at this stage, this Court worth recalls and recollects the decision in H.P.FINANCIAL CORPORATION Vs. M/S.CONTINENTAL SPINNERS LTD (2003 CRL.L.J.2750) wherein, at paragraph 7, it is observed as follows: 7. Since the case was instituted on a complaint and the dismissal of the complaint has the effect of acquittal, therefore, in view of the provisions of sub-sec.(4) of S.378 of the Code, the remedy of the complainant was to make an application seeking special leave to appeal against the impugned order and present an appeal, which course the complaint had not adopted.” 21. Also, in C.C.No.203 of 2007 when the trial Court had dismissed the case on 20.8.2010, when admittedly both parties remained absent, P.W.1 was already examined and the matter stood posted for examination of other witnesses on his side. As such, the present Criminal Appeal filed by the appellant before this Court in Crl.A.No.651 of 2010, is very much maintainable before this Court, since he is an affected/aggrieved party in respect of an order passed by the trial Court in regard to the closure of the main case. 22. As such, this Court holds that closure of the case in C.C.No.203 of 2007 as held by the trial Court through its impugned order dated 20.8.2010, is not valid in the eye of law, because the trial Court had not exercised its judicial discretion in favour of the appellant and also it had not adjourned the case to the next hearing date, when admittedly in the present case both parties had remained absent. 23. 23. That apart, if the complainant and the respondent/accused were absent on a particular date of hearing, ordinarily, the learned Judicial Magistrate would adjourn the case. However, that procedure was not resorted to by the trial Court. Consequently, viewed in that perspective, this Court is left with no option but to interfere with the said order dated 20.8.2010 in C.C.No.203 of 2007, and set aside the same in furtherance of substantial cause of justice. Consequently, the Appeal succeeds. 24. In the result, the Appeal is allowed and the order of the trial Court in C.C.No.203 of 2007 dated 20.8.2010, is hereby set aside by this Court for the reasons assigned in this Appeal. The learned Judicial Magistrate, Tirukoilur, is directed to restore C.C.No.203 of 2007 on his file within a period of four weeks from the date of receipt of copy of this order and to proceed further in the main case in the manner known to law and in accordance with law.