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2014 DIGILAW 3192 (MAD)

V. Kumaravel v. B. Muralikrishna

2014-09-09

M.VENUGOPAL

body2014
Judgment 1. The Appellant/Complainant has preferred the instant Criminal Appeal before this Court as against the order dated 23.08.2010 in C.C.No.442 of 2009 (in dismissing the complaint) passed by the learned Judicial Magistrate No.2, Erode. 2. The Learned Judicial Magistrate No.II, Erode, on 23.08.2010 in C.C.No.442 of 2009 passed the impugned order in question observing as under - “The case called on for hearing to-day to which it had been posted. The complainant not being present in person. No petition filed on behalf of the complainant and notice issued to the complainant. No response. Hence, complaint is dismissed. Accused is acquitted u/s.256, Criminal Procedure Code”. 3. Today, when the matter is taken up for hearing at 2.55 p.m., there is no representation on the side of the Appellant. Also on 25.07.2014, there was no representation on his side. However, on that day, there was representation on the side of the Respondent and the matter was directed to be listed on 01.08.2014. Furthermore, on 22.08.2014, when the matter was listed, none appeared on behalf of the Appellant and the matter was directed to be listed on 27.08.2014 as first case in final hearing. 4. On 27.08.2014, this Court had directed the Registrar (Judicial) of this Court to call for the immaterial records in C.C.No.442 of 2009 on the file of the learned Judicial Magistrate No.II, Erode through Special Messenger and further the matter was directed to be listed on 09.09.2014. Accordingly, the immaterial records were received on 04.09.2014. 5. At this stage, on perusal of the Memorandum of Grounds by this Court filed by the appellant/complainant in the present Appeal, it is quite clear that the Appellant/Complainant had taken a plea that on 23.08.2010, the Appellant/Complainant, owing to illness could not appear before the trial court and the dismissal of the complaint by the Trial Court on that score was not a proper one in the eye of Law. 6. Also it transpires that the stand of the Appellant/Complainant is that the reason given by the Trial Court in dismissing the complaint was not sound and proper and as such the same is to be set aside, in furtherance of substantial clause of justice. 7. It is not in dispute that the Appellant/Complainant filed the complaint under Sections 138, 141 and 142 of Negotiable Instruments Act against the Respondent/Accused before the trial Court on 07.09.2009. 7. It is not in dispute that the Appellant/Complainant filed the complaint under Sections 138, 141 and 142 of Negotiable Instruments Act against the Respondent/Accused before the trial Court on 07.09.2009. The sworn statement of the appellant/complainant was taken by the Learned Judicial Magistrate No.II, Erode on 06.10.2009 and the summons was ordered to be issued to the Respondent/Accused on payment of process fee by the Appellant/Complainant and the next hearing date was given as 09.12.2009. 8. It transpires from the notes paper in C.C.No.442 of 2009 on the file of the trial Court that, on 23.06.2010, the Complainant was called absent and no petition was filed on his behalf. However the accused was called absence and the petition was filed under Section 317 Cr.P.C. and the same was allowed. Furthermore, the trial Court directed the issuance of notice to the complainant by 27.07.2010. 9. On 27.07.2010, the trial Court, in the notes paper in C.C.No.442 of 2009 had recorded that the complainant was called absent and no petition was filed and also that the accused was called absent and on his behalf the petition was filed and allowed. That apart, the Trial Court ordered issuance of notice to the complainant by 23.08.2010. 10. On 23.08.2010, the complainant was called absent and the Trial Court, in the notes paper had recorded that notice was issued and since there were no response, complaint was dismissed and the accused was acquitted under Section 256 Cr.P.C. 11. A cursory perusal of the immaterial records in C.C.No.442 of 2009 on the file of the trial Court shows that a final notice in D.No.1073/02.08.2010 was issued by the trial Court addressed to the Appellant/Complainant wherein it was, interalia stated that the Appellant/Complainant has not appeared before the Court for various months and further it was stated that the next hearing date was 23.08.2010 on which date, the appellant/complainant was required to appear before the trial Court and that apart, he was also informed that if he fail to appear on that day, the case would be decided in accordance with Law. 12. It is to be borne in mind that in terms of ingredients of Section 256 of Cr.P.C., the Learned Judicial Magistrate No.II, Erode has to, on exercising his discretion record that there is no good reason for which it would be proper to adjourn the hearing of the case to any other day. 12. It is to be borne in mind that in terms of ingredients of Section 256 of Cr.P.C., the Learned Judicial Magistrate No.II, Erode has to, on exercising his discretion record that there is no good reason for which it would be proper to adjourn the hearing of the case to any other day. Absence of Appellant/Complainant on the date of hearing ordinarily cannot be a ground for acquitting the Respondent/Accused in a routine fashion. The acid test is one of good faith and not to be used for merely disposing of the matter. In summons case, under Section 138 of the Negotiable Instrument Act, 1881 if the complainant remains absent on numerous occasions, then the dismissal of the complaint under Section 138 of the Negotiable Instrument Act cannot be found fault with. Equally, there is no corresponding obligation for a Judicial Magistrate to wait till the close of the working day for proceedings under Section 256 of Cr.P.C, when the Complainant is absent or when no request was made by his counsel or his representative for either adjourning the case or for passing over the matter. 13. It cannot be forgotten that Section 256 of Cr.P.C. is made applicable only if the complaint is taken on file and the summons are issued to the Accused. An order under Section 256 of Cr.P.C., is a final order which prevents filing of fresh complaint must be passed after due and proper application of mind and sound exercise of judicial discretion. It is true that whether the complainant does not appear on the date fixed for hearing, a Court has a discretion to adjourn the case. Infact, the Learned Magistrate is not required to record reasons. But it must be remembered that the dismissal of complaint for non-appearance in early hours of the day is not a proper and valid one, in the eye of Law. 14. As far as the present case is concerned, it comes to light that the complainant was called absent on 23.06.2010 and even on that day, the notice was ordered to be issued to him by the trial Court for the hearing on 27.07.2010. Even on 27.07.2010, the complainant remained absent and also notice was ordered to be issued to the complainant for the hearing on 23.08.2010. Even on 27.07.2010, the complainant remained absent and also notice was ordered to be issued to the complainant for the hearing on 23.08.2010. As stated earlier, the office of the Learned Judicial Magistrate No.II, Erode had issued notice in D.No.1073 / 02.08.2010 to the Appellant/Complainant for the hearing on 23.08.2010. In the instant case, it cannot be said that the complainant was not provided with adequate opportunities / ample opportunities in regard to the next hearing date fixed for the hearing of the case in C.C.No.442 of 2009 on the file of the Trial Court. In reality, in the final notice issued by the office of the trial Court dated 02.08.2010, it was categorically mentioned that the Appellant/Complainant had not appeared in the case for so many months and finally for the hearing on 23.08.2010, notice was issued to him. As a matter of fact, the Appellant/Complainant was put on final notice that if he fail to appear on 23.08.2010, then the case would be decided in accordance with Law. 15. Be that as it may, in the light of foregoing quantitative and qualitative discussions as mentioned supra and this court, taking note of the fact that the Appellant/Complainant had not appeared before the trial Court on 23.08.2010 and was not present and also when on his behalf, no petition was filed and when notice was directed to be issued and accordingly issued by the office of the trial Court, even then, the Appellant/Complainant was not present on 23.08.2010. As such, the trial Court was left with no option that to pass an order of dismissing the complaint and acquitted the accused in terms of Section 256 of Cr.P.C. The said order passed by the trial Court in C.C.No.442 of 2009, in the considered view of this Court does not suffer from any legal infirmities, or material irregularities / patent illegalities, in the eye of Law. Consequently, the Criminal Appeal fails. 16. In the result, the Criminal Appeal is dismissed. Consequently, the order dated 23.08.2010 passed by the learned Judicial Magistrate No.II, Erode in C.C.No.442 of 2009 is hereby affirmed by this court for the reasons assigned in this appeal.