Abdul Salam vs M. Abdul Basha

T. Sudanthiram, J.—The revision petitioner herein who is the complainant in C.C. No. 69 of 2007, on the file of the District Munsiff cum

Judicial Magistrate, Arcot, filed a case against the respondent herein for an alleged offence u/s 138 of the Negotiable Instruments Act. On

27.04.2009, the complainant/petitioner herein was absent before the trial Court, but the accused was present. The learned Magistrate had passed

an order, discharging the accused by invoking the provision u/s 249 Cr.P.C. Aggrieved by the said order of the Learned Judicial Magistrate,

Arcot, the petitioner/complainant has preferred this revision.

The Learned Counsel for the Petitioner has submitted that for the offence u/s 138 of Negotiable Instruments Act, the case must be tried on

summary trial procedure or on summons case procedure. Either under summary trial or trial of summon cases, the trial Court has no power to

discharge the accused u/s 249 Cr.P.C. The provision which the learned Magistrate applied is applicable only for trial of warrant cases.

The Learned Counsel for the petitioner further submitted that pending trial, the matter was referred to Lok Adalat and since no settlement was

arrived at, the same was returned back and posted for cross examination of the complainant - P.W.1 on 23.04.2009. The petitioner could not

appear even on that day due to ill-health and he has also not instructed his Counsel and the case was adjourned to 27.04.2009. As it was

adjourned for a short span of four days, the petitioner was not aware of that date. On that day, the learned Magistrate had discharged the accused

erroneously invoking the provision u/s 249 Cr.P.C.

The Learned Counsel for the accused/respondent herein submitted that the revision petitioner was absent on 23.04.2009 and on that day, the

case was posted for cross examination of P.W.1 and as he was absent on that day, the case was posted again on 24.05.2009 and again neither

the complainant nor his Counsel appeared. Taking into account the continuous absence of the complainant, the learned Magistrate has discharged

the accused.

The Learned Counsel for the respondent further submits that though the wrong provision has been quoted by the Learned Magistrate, the

reasons given by the Learned Magistrate are sustainable.

This court considered the submissions made by both parties. It appears that the Learned Magistrate had not understood the difference between

the trial of warrant cases and trial of summon cases. Under chapter-XIX, the procedure for trial of summons cases have been given. In the

impugned order, the learned Magistrate has invoked the provision u/s 249 Cr.P.C, which is applicable only to the trial of warrant cases. If the

complainant is absent in a case, either under summons case procedure or summary trial procedure, u/s 256 Cr.P.C., the learned Magistrate may

acquit the accused. Then the remedy open to the complainant is only to file an appeal against the acquittal before the High Court. In this particular

case, the learned Magistrate has not invoked the provision u/s 256 Cr.P.C, but erroneously invoked the provision u/s 249 Cr.P.C under which, in

a trial of warrant case, if the complainant is absent, the court may discharge the accused at any time before the charge has been framed.

It appears from the docket entry made in this case, on 19.02.2009, 05.03.2009, 19.03.2009 and 02.04.2009, though the complainant had

been present, the case was adjourned by the learned Magistrate, and the reason for adjourning the case was not mentioned. In the said

circumstances, it cannot be said that the complainant had been wilfully absent before the Court on 23.04.2009 and 27.04.2009. Anyhow, as the

Magistrate has not invoked the provision u/s 256 Cr.P.C, but erroneously invoked Section 249 Cr.P.C and discharged the accused, the order

passed by the Learned Magistrate, Arcot, in C.C. No. 69 of 2007 is set aside. The learned Magistrate is directed to continue the trial and proceed

according to law. The learned Magistrate is further directed to complete the trial within a period of six months from the date of receipt of a copy of

this order.

The Criminal revision petition is allowed accordingly.