Madras High Court
S. Sankar vs C.V. Pasupathi on 13 October, 2000
Equivalent citations: 2001CRILJ2144
JUDGMENT B. Akbar Basha Khadiri, J.
1. This appeal has arisen in this way :--
The appellant herein preferred a private complaint under Section 200 of the Code of Criminal Procedure before the learned Judicial Magistrate, Bhavani, against the respond-ent-Pasupathi, alleging that he had committed an offence under Section 138 of the Negotiable Instruments Act. According to the petitioner, he had followed the procedure laid down under the relevant provisions of the Negotiable Instruments Act to prefer the complaint. The learned Judicial Magistrate, Bhavani, took the complaint on file in C.C. No. 281 of 1999 on 9-9-1999. But the complaint was dismissed on 28-4-2000. The learned Judicial Magistrate has passed the following order :--
The case was called on for hearing today to which it had been posted. The complainant not being present either in person or by pleader, or having been reported dead the accused is acquitted Section 256, Criminal Procedure Code.
Against this order, the complainant has preferred this criminal appeal.
2. The learned counsel for the appellant submits that pending issuance of summons to the respondent, the learned Judicial Magistrate has dismissed the complaint. Since the complaint was dismissed at the threshold before the summons could be sent to the accused, I fell that the respondent has not attained the statute of the accused and notice need not be sent to him.
3. Heard the learned counsel for the appellant. In Associated Cement Co. Ltd. v. Keshavanand (1998) 1 Crimes 88 : (1998 Cri LJ 856) (SC), the Apex Court has pointed out as under :--
3. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint.
An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum.
14. 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 this 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 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.
4. Following the decision of the Apex Court cited supra, inKumaresanv. Girirajan, 1999 (1) CTC 371, A. Raman, J. had an occasion to deal with an identical matter. In that case, the order of the trial Court did not show whether any process was issued to the accused, and whether the accused had entered appearance or not. It did not also read that it was the appointed day for the appearance of the accused on the date fixed for trial. The order also did not show that on the date of the hearing, the accused was present. It was not stated in the order that the case was posted for final hearing on that date. It was also not stated that the complainant had been absent on the previous hearings. .The learned Judge has observed that the case has been disposed of by the Magistrate by misusing the provisions of Section 256, Cr. P.C. The learned Judge has also pointed out that Section 256 of the Code, empowers the Magistrate to dismiss the complainant and that the power has to be exercised with judicial restraint and to advance the cause of justice. It was pointed out by the learned Judge that in that case, the Magistrate has exercised his discretion arbitrarily which requires condemnation.
5. What has been stated by A. Raman, J. in the decision cited supra, squarely applies to the facts of the instant case also. All the defects pointed out by the learned Judge in that case cited supra are glaring in the order passed by the learned Judicial Magistrate in the instant case.
6. The view expressed by A. Raman, J. in the decision cited supra, has been reiterated by K. Matarajan, J. in Sri Shanmugha Priya Finance and Chits Rep. by its Manager N. Murugeshv. V. Durairaja, 1999 (2) Mad WN (Cri) 89.
7. Having gone through the order passed by the learned Judicial Magistrate, Bhavani. I feel that the learned Judicial Magistrate has exercised his discretion arbitrarily. The order passed by the learned Judicial Magistrate, Bhavani C.C. No. 281 of 1999 is set aside. The learned Judicial Magistrate, Bhavani shall restore the case in C.C. No. 281 of 1999 to his file and proceed further in accordance with the law. Accordingly, this criminal appeal is allowed.