Allowed

N. Chirstopher Raj v. a. Pazhani

Madras HC11 Dec 2013CRL A(MD)/108/2013

Case brief

AI extract

What is this about?

Madras High Court allowed criminal appeal against acquittal in cheque bounce case where complainant failed to appear on one trial date due to illness. Court held defense lacked bona fide and remanded for disposal on merits.

What did the court decide?

Impugned order set aside; Appellant directed to appear before court below; trial expedited within six months on merits.

N. Chirstopher Raj Vs a. Pazhani — Cheque Dishonour | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.12.2013 CORAM:

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THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

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CRL. A. (MD) No. 108 of 2013

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N.Christopher Raj ...Appellant/Complainant

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Vs.

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A.Pazhani

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..Respondent/Respondent

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Prayer :- This Criminal Appeal is filed against the order dated 06.03.2012 made in S.T.C.No.590 of 2010 passed by the learned Judicial Magistrate, Padmanabhapuram.

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For Appellant : Mr.N.S.Ramakrishna Dass For Respondent : No appearance

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J U D G E M E N T

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This Criminal Appeal is filed by the complainant against order dated 06.03.2012 passed in S.T.C.No. 590 of 2010 by the learned Judicial Magistrate, Padmanabhapuram, acquitting the Respondent/accused under Section 256 of Code of Criminal Procedure.

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Though the respondent was served, no one entered appearance. Heard the learned counsel appearing for the petitioner and perused the materials available on record.

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The Appellant is the complainant before the learned learned Judicial Magistrate, Padmanabhapuram and he lodged a private complaint on the strength of a dishonoured cheque against the Respondent under Section 138 of the Negotiable Instruments Act.

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The learned Magistrate dismissed the said complaint, acquitting the accused under Section 256 of Code of Criminal Procedure for non appearance of the complainant. It is stated in the impugned order that complainant was absent and hence, the complaint has been dismissed.

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The learned counsel for the Appellant submitted that on several hearings the complainant was present but however, since https://hcservices.ecourts.gov.in/hcservices/ the accused was absent the complainant was directed to take process on payment. Since bailable warrant was not executed the

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matter was adjourned to 10.06.2011. In the meantime, on 25.01.2012 bailable warrant was recalled on the accused surrenderred and the case was adjourned to 31.01.2012. The accused was questioned and the matter was posted for trial on 06.03.2012 and on that day, the accused was present and the complainant was absent and therefore, the learned Magistrate dismissed the complaint under Section 256 of Cr.P.C. It is seen that the complainant was very much present on various dates except on the said date i.e on 31.01.2012. Though the matter was adjourned for trial, there is no indication that the matter would be taken for trial finally on 06.03.2012. It is submitted by the learned counsel for the appellant that he was suffering from viral fever and therefore, he could not attend the court on 06.03.2012.

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The learned counsel strenuously contended that merely because of non appearance of the complainant before the court below at the time of hearing, the Magistrate cannot pass an order acquitting the accused and dismiss the complaint.

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According to the learned counsel for the Appellant, the court below ought to have adopted a proper procedure and the nonobservance of such procedure would tantamount to non-rendering of proper justice to the parties. In support of his contention, he relied on the decision of the Honourable Supreme Court rendered in the case of Associated Cement Co. Limited Vs. Keshavanand [1998Crl.LR-856], wherein it is held thus:-

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"Two constraints are imposed on the Court for exercising the power under Section 256. First is, if the court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit 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 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 complaint on that date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice."

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https://hcservices.ecourts.gov.in/hcservices/

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From the above said decision, it is clear that the proper course to be adopted by the learned Judicial Magistrate is that when the complaint has been taken up for hearing, if the complainant was not present before the Court, it is incumbent upon the learned Magistrate to issue a notice to the complainant and without issuance of such a notice, adopting the procedure of dismissing the complaint under Section 256 of Code of Criminal Procedure is not at all appreciable.

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8.In yet another decision reported in the case of MohdAzeem Vs. A.Venkatesh and another reported in 2002(7) SCC 726 the Hon'ble Supreme Court has held that when the cause shown by the complainant cannot be disbelieved then it was a valid ground for restoration of the complaint. It has been further held that even if the complainant failed to examine the witnesses on earlier dates, the same could not be a ground to dismiss his complaint in his absence on one single day.

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In this case, it is seen that the complainant remained absent only due to the reason that he fell sick. I do not find any lack of bona fide in the said reasons shown by the Appellant.

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In view of the above said reasons, this court is of the considered view that one more opportunity could be given to the Appellant to appear before the learned Judicial Magistrate.

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In the result, this Criminal Appeal is allowed. The impugned judgement of the court below is set aside. The Appellant shall appear before the court below on 06.01.2014 without asking for any further adjournment. The court below is directed to fix the date for trial after informing the accused by sending notice and expedite the trial and complete the same, on merits and in accordance with law, as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order.

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ses

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Sd/-

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Assistant Registrar(C.O.)

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/True Copy/

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Sub-Assistant Registrar

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To: