R. Sadhu vs M. Pandian

S. Palanivelu, J.—This criminal appeal has been filed to remand the case back for trial by setting aside the order dated 22.01.2010, made in S.T.C. No. 45 of 2007, on the file of the learned Judicial Magistrate No. IV, Madurai.

The petitioner is the complainant in S.T.C. No. 45 of 2007, on the file of the learned Judicial Magistrate No. IV, Madurai. He filed a private complaint u/s 138 of the Negotiable Instruments Act against the respondent. The respondent filed an application to refer the cheque with the handwriting expert and the same was allowed on 31.07.2009. Even on that day, the complainant was not present. Afterwards, on six occasions including the one on 22.01.2010, he was not present before the Court and there was no representation on his side for all the said hearings. On 22.01.2010, the learned Judicial Magistrate dismissed the complaint. The order of dismissal is as follows:

Complainant absent. No representation. Complainant absent even after Court Notice. Accused absent. 317 Cr.P.C. petition filed and allowed. Hence, the complaint is dismissed and the accused is acquitted in terms of Section 256 Cr.P.C.

Mr. K. Sudalaiyandi, learned Counsel appearing for the petitioner strenuously argued that the presence of the complainant was not necessary on that date of hearing viz., on 22.01.2010 and hence, the dismissal of the complaint by the learned Judicial Magistrate is not warranted. In support of his contention, he placed reliance upon a decision of this Court in the case of R. Murali v. D. Udhayakumar (2007) 1 MLJ 981, in which the learned Judge has followed a decision of the Hon''ble Supreme Court in Associated Cement Company Limited v. Keshvanand (1998) MLJ SC 170 in which it has been held as follows:

Two constraints are imposed on the Court for exercising the power u/s 256, 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 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, there, be exercised judicially and fairly without impairing the cause of administration of criminal justice.

In the light of the above said decision, it is not proper for the learned Judicial Magistrate to dismiss the complaint in the absence of the complainant when his presence was not required for further proceedings. As far as the present case is concerned, the matter had been posted for receipt of the opinion of the handwriting expert and on perusal of the pleadings shows that it has not been received so far. Hence, on 22.01.2010, the presence of the complainant was not essential and the dismissal of the complaint on that date is not at all proper.

This Court also observes that when the Court dismisses the complaint for the absence of the complainant, it is expected to record reasons as to the necessity of presence of the complainant before the Court. In other words, there shall be a finding in the order of the Court below that without the presence of the complainant, the case could not be proceeded with on the particular date which paved way for the learned Judicial Magistrate to dismiss the complaint. Of course, for six hearings the complainant was not present and there was no representation for him still the law requires that unless the presence of the complainant is essential for a particular hearing, the learned Judicial Magistrate cannot dismiss the complaint. In these circumstances, the order challenged before this Court deserves to be set aside which is accordingly set aside.

In the result, the Criminal Appeal is allowed. The learned Judicial Magistrate No. IV, Madurai, is directed to restore the complaint and proceed further with the case in the light of the guidelines followed by the Hon''ble Supreme Court in Associated Cement''s case cited supra.