Allowed

N.Srinivasagan v. v.Alagarsamy

Madras HC8 Jul 2024CRL A(MD)/757/2023

Case brief

AI extract

What is this about?

The Madras High Court allowed an appeal seeking to set aside a dismissal of a cheque bounce complaint due to the complainant's absence caused by non-communication of the hearing date. The court set aside the impugned order, restored the complaint, and directed disposal within six months, imposing costs on the appellant.

What did the court decide?

Set aside the dismissed order, restore the complaint, direct disposal within six months, and order appellant to pay Rs.10,000 costs to respondent.

N.Srinivasagan Vs v.Alagarsamy — Cheque Dishonour | Madras HC (2024)

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Crl.A(MD).No.757 of 2023

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 08.07.2024

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CORAM

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THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

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Crl.A(MD).No.757 of 2023

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N.Srinivasagan ... Appellant

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Vs.

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V.Alagarsamy ... Respondent

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PRAYER : Criminal Appeal has been filed under Section 378(2) of Cr.P.C., 1973, to call for records and set aside the order passed by the Court of learned Judicial Magistrate No.II, Sattur, Virudhunagar District in S.T.C.No. 165 of 2022 on 09.12.2022 and allow this Criminal Appeal.

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For Appellant : Mr.M.Jothi Basu For Respondent : Mr.S.Mahalakshmi

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JUDGMENT

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This appeal has been filed to set aside the order passed by the learned Judicial Magistrate No.II, Sattur, Virudhunagar District in S.T.C.No. 165 of 2022 on 09.12.2022 and allow this Criminal Appeal.

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Page 1 of 6

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https://www.mhc.tn.gov.in/judis

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Crl.A(MD).No.757 of 2023

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The appellant is the complainant in S.T.C.No.165 of 2022. The respondent borrowed a sum of Rs.4,00,000/- from the appellant on 25.01.2020. To discharge the said debt, he issued cheque on 28.03.2021 drawn on the IDBI Bank, Sivakasi Branch. The appellant presented the cheque before his Bank and the cheque was returned with an endorsement of “Insufficient Funds”. Therefore, the appellant/complainant issued the legal notice on 15.06.2021. Even though the respondent received the same on 16.06.2021, he has not sent any reply and has not made any payment. In such circumstances, the appellant filed a complaint under Section 138 Cr.P.C., before the Judicial Magistrate No.II, Sattur, Virudhunagar District and the learned Judicial Magistrate taken the complaint on file in STC.No. 165 of 2022.

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After receipt of the summons both the parties appeared and the

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case was posted for examination of the appellant/complainant on 09.12.2022. on 09.12.2022, the appellant/complainant was absent and there was no representation on the side of the accused. Therefore, the learned Judicial Magistrate No.II, Sattur dismissed the petition on the ground that

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Page 2 of 6

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https://www.mhc.tn.gov.in/judis

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Crl.A(MD).No.757 of 2023

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the complainant did not appear for number of hearings. Challenging the same, the present appeal has been filed and notice was issued to the respondent and he was appeared through his counsel.

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The learned counsel for the appellant submitted that the appellant has not received any communication from his Advocate and his counsel is also not appeared before the Court below. Hence, he seeks to set aside the dismissed for default order.

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The learned counsel for the respondent submitted that once a complaint is filed before the Court below, he must appear before the Court on every hearing dates and prosecute the case. In this case, after filing the complaint, the appellant did not appear before the concerned Court. Hence, the learned trial Judge rightly dismissed the above complaint.

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6.The petitioner is the defacto complainant. He filed the complaint under Section 138 of the NI Act, to take action against the respondent for the alleged dishonour of cheque of Rs.4,00,000/- and the same was taken on

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Page 3 of 6

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https://www.mhc.tn.gov.in/judis

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Crl.A(MD).No.757 of 2023

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file in S.T.C.No.165 of 2022. The petitioner has been regularly appearing before the Court without any default. The case was posted for examination of the petitioner on 09.12.2022. Inadvertently, the same was not informed by the learned counsel. In view of the said non-communication, he has not appeared on 09.12.2022. On the day, the accused has also not appeared. Considering the bonafide conduct of the appellant and as he had regularly appeared before the Court below except the said one hearing, that too because of non communication of hearing date, this Court is inclined to set aside the impugned order of the learned trial Judge on terms in order to provide the opportunity to the appellant to prove his case on merits in the interest of justice.

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Accordingly, this Criminal Appeal is allowed with the following directions:

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(i) The order passed by the learned Judicial Magistrate No.II, Sattur, Virudhunagar District in S.T.C.No.165 of 2022 dated 09.12.2022 is set aside and the complaint is to be restored. After restoration of S.T.C.No. 165 of 2022, the learned Judicial Magistrate No.II, Sattur, Virudhunagar

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https://www.mhc.tn.gov.in/judis

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Crl.A(MD).No.757 of 2023

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District, is directed to disposed of the same within a period of six months from the date of receipt of a copy of this order.

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(ii) The appellant is directed to pay a cost of Rs.10,000/- to the

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respondent within a period of two weeks from the date of receipt of a copy of this order and produce the necessary acknowledgement before the trial Court.

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08.07.2024

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NCC :Yes/No Index :Yes/No Internet :Yes/No tta

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1.The Judicial Magistrate No.II, Sattur, Virudhunagar District.

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2.The Section Officer, Criminal Section (Records), Madurai Bench of Madras High Court, Madurai.

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https://www.mhc.tn.gov.in/judis

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Crl.A(MD).No.757 of 2023

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K.K.RAMAKRISHNAN, J.

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tta/ sbn

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Crl.A.(MD).No.757 of 2023

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08.07.2024

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Page 6 of 6

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https://www.mhc.tn.gov.in/judis

N.Srinivasagan v. v.Alagarsamy

Case brief

What is this about?

What did the court decide?

N.Srinivasagan v. v.Alagarsamy

Case brief

What is this about?

What did the court decide?

What the court decided

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