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2022 DIGILAW 3359 (MAD)

Bakyalakshmi v. Vani

2022-09-16

K.MURALI SHANKAR

body2022
JUDGMENT (Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C, to set aside the order passed by the I Additional District and Sessions Judge (PCR), Trichy in Crl.R.C.No.19 of 2018 dated 11.10.2018 confirming the order passed by the Judicial Magistrate No.III, Trichy in C.C.No.167 of 2010 dated 27.11.2015.) 1. This Criminal Original Petition has been filed, invoking Section 482 of the Code of Criminal Procedure, seeking orders for setting aside the order passed in Crl.R.C.No.19 of 2018 dated 11.10.2018 by the learned I Additional District and Sessions Judge (PCR), Trichy, confirming the order passed by the learned Judicial Magistrate No.III, Trichy, in C.C.No.167 of 2010 dated 27.11.2015. 2. The petitioner is the complainant and she filed a private complaint under Section 200 Cr.P.C., through her power agent, against the respondent/accused for the offence under Sections 138 r/w 142 of the Negotiable Instruments Act. 3. The case of the petitioner/complainant is that the petitioner / complainant being the proprietress of Sri Lakshmi Traders sold curled coir rope worth of Rs.1,89,950/- to the respondent/accused, that the respondent/accused, in order to discharge the said liability issued two cheques dated 31.10.2019 bearing Nos.032740 and 032741 for Rs.1,00,000/- and Rs.89,950/- respectively drawn on Union Bank of India, Enikepadu, Krishna District, Andhra Pradesh, that the petitioner/ complainant presented the said cheques for collection through her banker Karur Vysya Bank, Srirangam Branch, Trichy, on 12.12.2009, that the cheques were returned dishonored for want of sufficient funds in the bank account of the respondent/accused, that as per the request made by the respondent/accused, the petitioner/complainant presented the cheques again for collection on 07.01.2010, but the cheques were again dishonored for insufficient funds, that the petitioner/complainant has then sent a legal notice dated 06.02.2010 demanding payment of the amount covered by the cheques, that the respondent/accused having received the legal notice, has neither sent any reply nor made any payment and that therefore, the petitioner/complainant was constrained to lodge the above complaint. 4. It is not in dispute that the respondent/accused, even after the receipt of Court summons, did not appear before the concerned Court and hence, Bailable Warrant was issued on 02.02.2012, that thereafter Non-Bailable Warrant (NBW) was issued on 15.04.2014, that since the said warrant was not executed, Bailable Warrant was issued again and that Bailable Warrant is pending against the respondent/accused from 25.08.2014. 5. 5. It is evident from the records that on 27.11.2015, since the petitioner/complainant was not present and as there was no representation and that the case was pending for several years, the learned Magistrate has proceeded to dismiss the petition under Section 256 Cr.P.C. for the absence of the petitioner/complainant and consequently, acquitted the respondent/accused. Aggrieved by the dismissal of the complaint, the petitioner/complainant has preferred a revision in Crl.R.C.No.19 of 2018 and the learned I Additional District and Sessions Judge (PCR), Trichy, by observing that though Bailable Warrant was pending against the respondent/accused, the petitioner/ complainant was continuously absent for past eight hearings, despite sending of show cause notice dated 19.10.2015, dismissed the complaint. 6. At this juncture, it is necessary to refer the judgment of the Hon'ble Supreme Court in The Associated Cement Co. Ltd. vs. Keshvanand reported in 1998 (1) SCC 687 and the relevant passage is extracted hereunder:- “18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. 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 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.” 7. 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.” 7. The Hon'ble Apex Court has specifically observed that when the complainant was absent on a particular day, the Court must consider whether personal appearance of the complainant is necessary 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 and if the situation does not justify the case being adjourned, the Court is free to dismiss the complaint and acquit the accused. 8. In the case on hand, as already pointed out, admittedly, Bailable Warrant is pending against the respondent/accused for very long time. 9. No doubt, the petitioner/complainant has not appeared before the trial Court for nearly eight hearings. But according to the trial Court as well as the revisional Court, they have taken a serious view that though the trial Court has issued a show cause notice dated 19.10.2015, he has not turned up. 10. It is pertinent to note that the learned Magistrate in his order has not recorded as to whether the show cause notice dated 19.10.2015 sent to the petitioner/complainant was served and that the learned Magistrate has satisfied with the service of notice. 11. When the trial Court has nowhere whispered that the said show cause notice was sent through the Registered Post, as per Section 27 of the General Clauses Act, there was a deemed service. 12. As rightly contended by the learned counsel for the petitioner, since Bailable Warrant was pending against the respondent/accused, there was no need or necessity for the petitioner/complainant to appear on every hearing. 13. It is not the case of the trial Court or the revisional Court that the petitioner/complainant has not paid process fee, after Bailable Warrant was issued against the respondent/accused. 14. The learned I Additional District and Sessions Judge has not assigned any other reason or ground for confirming the dismissal order passed by the learned Magistrate. 15. 13. It is not the case of the trial Court or the revisional Court that the petitioner/complainant has not paid process fee, after Bailable Warrant was issued against the respondent/accused. 14. The learned I Additional District and Sessions Judge has not assigned any other reason or ground for confirming the dismissal order passed by the learned Magistrate. 15. Considering the above, this Court has no hesitation to hold that the impugned order dismissing the revision, confirming the dismissal of the complaint under Section 256 Cr.P.C., is legally unsustainable and the same is liable to be set aside. 16. In the result, this Criminal Revision Petition is allowed and the impugned order dated 11.10.2018 passed in Crl.R.C.No.19 of 2018 on the file of the learned I Additional District and Sessions Judge (PCR), Trichy, confirming the order of the learned Judicial Magistrate No.III, Trichy, dated 27.11.2015, dismissing the complaint under Section 256 Cr.P.C., is set aside. The learned Judicial Magistrate No.III, Trichy is directed to restore the case to his file and to direct the concerned police for earlier execution of the warrant pending against the respondent/ accused.