M/s A.V. Thomas and Co. Ltd. vs P. Balasubramanian, Prop. of M/s. Saravana Agro Centre

A. Packiaraj, J.—This appeal has been preferred against the acquittal of the accused in C.C. No. 215 of 1994, on the file of the Judicial Magistrate No. IV, Trichy, of offence u/s 138 I.P.C.

The said acquittal has been passed u/s 256 Code of Criminal Procedure on account of the absence of the complainant. A reading of the order would reveal that "Inspite of the notice being issued to the complainant, the complainant was absent and there was no representation on his behalf either. Accused absent. Petition to condone his absence filed and the same has been accepted. The Court examined the Court Officer and consequently, accused was acquitted u/s 256 Code of Criminal Procedure". From the above, it is clear that though notice has been issued to the complainant to be present, neither the complainant nor his counsel appeared to have been present. Though law does not require that a notice to be given to the complainant, the Magistrate deemed to do so in the interest of justice, but inspite of the same, there had been no representation and consequently, the impugned order has been passed. It is against this order, the present appeal has been filed.

The learned Counsel appearing for the Appellant, without going into the merits of the case, solely confined his arguments only to the effect that though the order says notice was issued to the complainant, a perusal of the records available in Court does not contain the notice that has been issued to the complainant and consequently, he pressed this Court to accept his contention that no notice was given to the complainant.

I am unable to accept the above said contention, besides I have no hesitation to express my displeasure with regard to the submission by the counsel. My request to the counsel not to make such a submission unless he was very sure of the facts was not headed. But the same was reinforced. When a Judicial Magistrate has passed an order on the basis of an action taken by him and when the same has been reflected in his order, it is unfortunate that such an argument is being made. What is more appalling is the fact that this point has not either been taken in the grounds, nor any affidavit was filed by the complainant to indicate that notice was not issued by the Magistrate. In the absence of such material, to say the least, it is an uncharitable submission of the counsel.

The learned Counsel would further say that he would base his argument because the records do not reveal the presence of such a notice. But what the counsel has failed to see is that only the material papers alone are before this Court. While ''A'' Diary, ''B'' Diary and other notices relating to the services on the accused and the relevant papers such as 317 petitions, process application etc., have not been sent to this Court, but would be available only at the Court at Trichy. The counsel admits that those records had not been perused by him. In such circumstances, there is no justification for such an argument being made and I feel that the less said the better it is.

In the result, I find that there is absolutely no illegality committed by the learned Magistrate and the Magistrate is perfectly justified in passing an order of acquittal u/s 256 Code of Criminal Procedure and accordingly, the appeal is dismissed.