High Court allowed criminal revision in cheque dishonour case where petitioner was absent due to wife's cancer treatment. Court set aside dismissal for default and restored complaint on file, finding no prejudice to respondent.
Order dated 22.02.2016 missed XVIIMM was set aside and the complaint was restored on file.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.11.2018
CORAM:
THE HONOURABLE MR. JUSTICE V.PARTHIBAN
Crl.R.C.No.541 of 2018
G.Krishnan ... Petitioner/Petitioner
Vs.
E.Sathish Kumar ... Respondent/Respondent
PRAYER : The Criminal Revision filed under Section 397 read with
401 of Code of Criminal Procedure set aside the order dated
22.02.2016 of the learned XVII Metropolitan Magistrate,
Saidapet, in C.C.unnumbered of 2016 and to restore the case on
file.
For Petitioner : Mr.V.Venkatesan
For Respondent : No appearance
O R D E R
The present revision case has been filed against the order dated 22.02.2016 of the learned XVII Metropolitan Magistrate, Saidapet, in C.C.unnumbered of 2016, dismissing the case for no appearance and to restore the case on file.
(i) According to the petitioner/complainant, the respondent/accused had approached him and borrowed a sum of Rs.3,00,000/- as a hand loan and in discharge of the loan, the respondent had handed over two cheques bearing No.000001 dated 01.09.2014 and a cheque bearing No.000002 dated 06.11.2014, both for a sum of Rs.1,50,000/- each. When the cheques were presented, the same were returned unpaid with an endorsement “funds insufficient”. Thereafter, a statutory notice was issued on 03.12.2014, for which, there was no reply from the respondent.
(ii) In the above circumstances, the petitioner filed a case under Section 138 of the Negotiable Instruments Act before the learned XIV Metropolitan Magistrate, Egmore on 17.02.2015, as originally, the said Court had jurisdiction to try the issue. Subsequently, on the basis of the order passed by the Hon'ble Supreme Court of India, the case was transferred to the learned XVII Metropolitan Magistrate, Saidapet on 29.06.2015 and the case records appeared to have been returned to the petitioner to file in the Court concerned. Thereafter, the petitioner filed the papers before the learned XVII Metropolitan Magistrate, Saidapet, on 03.07.2015, within the limitation period.
(iii) While so, it appears that the petitioner's wife was diagnosed with Throat Cancer and the petitioner had to be with his wife to attend all the medical needs of her. In view of the continuous medical treatment being given to his wife, there was a communication gap between the petitioner and the erstwhile counsel. In these circumstances, there was no appearance on 22.02.2016, when the case was listed for taking the complaint on file. In view of the absence of the learned counsel as well as the petitioner/complainant, the learned XVII Metropolitan Magistrate had dismissed the case for default on 22.02.2016 in C.C.unnumbered of 2016. As against the said order, the present revision case has been filed.
petitioner and if the revision case is allowed, no prejudice would be caused to the respondent/accused as he can always plead his defence before the Trial Court.
Sd/-
Assistant Registrar(CS-IV)
//True copy//
Sub Assistant Registrar
gsk
To
The XVII Metropolitan Magistrate,
Saidapet, Chennai.
+1cc to Mr.V.Venkatesan, Advocate SR.No.80004
Crl.R.C.No.541 of 2018
SJ(CO)
GMY(14/12/2018)
2 issues framed by the court
Whether a criminal revision in cheque dishonour case should be allowed when the petitioner's absence was due to unavoidable medical emergencies for his wife.
Whether restoring a dismissed trial complaint causes undue prejudice to the respondent who was also absent.
2 provisions across 2 enactments
G. Krishnan
E. Sathish Kumar
V. Parthiban
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
