Madras High Court
K. Mohanan vs Mrs.Saraswathy on 30 November, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/11/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.(MD)No.203 of 2012 K. Mohanan ... Appellant Vs Mrs.Saraswathy ... Respondent PRAYER Criminal Appeal filed under Section 378 of Cr.P.C., against the judgment passed in C.C.No.40 of 2012 on the file of the Learned Fast Track Court No.II, Nagercoil on 30/5/2012 acquitting the respondent/accused from offence under Sections 138 and 142 of the Negotiable Instruments Act. !For Petitioner ... Mr.V.M.Balamohan Thampi ^For Respondent ... Mr.I.Mohammed Razra - - - - - :JUDGMENT
The Appellant/Complainant has preferred the instant Criminal Appeal as against the order of acquittal dated 30/5/2012 in C.C.No.40 of 2012 passed by the Learned Fast Track Court No.II, Nagercoil (Magisterial level).
2. The Learned Judicial Magistrate (Fast Track Court No.II), Nagercoil in C.C.No.40 of 2012 on 30/5/2012 has inter alia opined that although the presence of P.W.1/Complainant for the purpose of cross-examination is very much essential and also it has been made clear that no further adjournment for the purpose of cross-examination will be granted and further more, his presence is required for the purpose of cross-examination, on 23/5/2012, he has not appeared before the Court (in spite of specific direction in this regard has been issued to him) and added further, there has been no representation on the side of the Appellant/Complainant and consequently, the Respondent/Accused has been acquitted as per Section 256 (1) of Cr.P.C., owing to the non-appearance of the Appellant/Complainant.
3. Feeling dissatisfied that the order of acquittal passed by the trial Court in C.C.No.40 of 2012 on 30/5/2012, the Appellant/Complainant has preferred the present Criminal Appeal on various grounds, raising the plea that the Appellant/Complainant has been examined in chief on 4/4/2007 and from that time onwards, he has not been cross-examined on the side of the Respondent/Accused and in any event, the impugned order passed by the trial Court in acquitting the Respondent/Accused as per Section 256 (1) of Cr.P.C., is illegal in Law.
4. Per contra, it is the submission of the Learned Counsel for the Respondent/Accused that the Appellant/Complainant has been specifically directed by the trial Court to appear on 23/5/2012, when the matter has been posted as a last chance and since Advocates' boycotted the Court, the cross-examination of Appellant/Complainant (P.W.1) has since been adjourned to 30/5/2012 and also it has been made clear that no further adjournments will be granted. Continuing further, in spite of the aforesaid specific direction issued by the trial Court, the Appellant/Complainant (P.W.1) has not chosen to appear on 30/5/2012, when the matter has come up for further hearing and on that day, there has been no representation on behalf of the Appellant/Complainant either in person or through counsel. Therefore, the trial Court has been perforced to acquit the Respondent/Complainant by resorting to the ingredients of Section 256 (1) of Cr.P.C.
5. Admittedly, there is no provision in the Criminal Procedure Code which enjoins a Learned Magistrate to revive a case after an order of acquittal has been passed by him. In the instant case, although a direction has been given specifically by the trial Court to the Appellant/Complainant to appear on 23/5/2012, on that day, due to boycott of Courts by Advocates, the cross- examination of the Appellant/Complainant (P.W.1) could not be made and the matter has been adjourned to 30/5/2012. Even on 30/5/2012, the Appellant/Complainant appears to have adopted a lackadaisical approach or a liaise fair attitude and he had not appeared before the Court either in person or through counsel. Only under such circumstances, the trial Court was constrained to acquit the Respondent/Accused.
6. It cannot be gain said that the ingredients of Section 256 of Criminal Procedure Code, can be invoked by the Learned Magistrate in a summons case where the Complainant has not appeared before him or does not appear. Even though the Learned Judicial Magistrate has got discretion to acquit the accused by resorting to the provisions of 256 (1) of the Code of Criminal Procedure, for non-appearance of the Complainant or his Counsel, yet this Court is of the considered view that the Learned Magistrate must be cautious and circumspect in passing an order of acquittal owing to the non-appearance of the Complainant or Counsel. As a matter of fact, a reading of the ingredients of 256 (1) of the Criminal Procedure Code, shows that the said provisions is only directory in nature and it is not mandatory in character.
7. Be that as it may, this Court is of the considered view that even the absence of Complainant or his Counsel, on the date of hearing cannot be a reason for acquitting the Accused in a routine or in a domestic fashion. The real/main test is one of good faith and a short cut acquittal or disposal of the case cannot be resorted either as a matter of course or as a matter of routine. As far as the present case is concerned, which appears that the Appellant/Complainant in spite of the directions issued earlier by the trial Court that he has to appear on 30/5/2012 for the purpose of cross-examination (when the matter has since been adjourned from 23/5/2012 to 30/5/2012 owing to boycott of Courts by Advocates) yet he has not obeyed the order of the Learned Judicial Magistrate. For conspicuous reasons known to the Appellant/Complainant, the Appellant/Complainant has not made himself available on 30/5/2012 for the purpose of carrying out the cross-examination to be done by either side. It is evident that on 30/5/2012, the Respondent/Accused has also remained absent. However, Section 317 of the Criminal Procedure Code, petition has been filed on his behalf and the same has been allowed by the trial Court. The Respondent/Complainant has been ready for cross-examining the Appellant/Complainant (P.W.1) but the Complainant/Appellant has remained absent. Under this circumstance, only the trial Court has passed an order of acquittal as per Section 256 (1) Criminal Procedure Code, (referred to in detail supra). Taking note of the fact that the Appellant/Complainant (P.W.1) has been chief examined as early as 4/4/2007 and since there is no considerable progress from that time onwards, in order to provide an opportunity to the Appellant/Complainant, this Court in the interest of justice, sets aside the order of acquittal passed by the trial Court in C.C.No.40 of 2012 on 30/5/2012 and allows the Criminal Appeal subject to the condition that the Appellant/Complainant pays a sum of Rs.500/- (Rupees Five Hundred only) to the Mediation and Conciliation Centre attached to Madurai Bench of Madras High Court on or before 7/12/2012 without fail.
8. In the result, this Criminal Appeal is allowed. Consequently, the order passed by the trial Court in C.C.No.40 of 2012 dated 30/5/2012 is hereby set aside by this Court for the reasons assigned in this appeal. Bearing in mind that the cheque in issue is dated 11/4/2005 and from 4/4/2007, the Damocles sword is hanging on the present case, wherein the Appellant/Claimant has not been cross-examined from 4/4/2007, this Court to prevent an aberration of justice and to avoid any further procrastination of the pending proceedings in C.C.No.40 of 2012 to its file and to dispose of the main case within a period of two months from the date of receipt of the copy of this order. It is made clear that the trial Court is directed to dispose of the main case within the time determined by this Court. Equally both the Appellant/Complainant and the Respondent/Accused are directed to lend a helping hand and their unstilted co- operation in regard to the completion of main proceedings in C.C.No.40 of 2012 in a complete and comprehensive manner.
mvs.
To The Fast Track Court No.II, Nagercoil