Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Petitioner:Mr. R. Marudhachalamurthy, Advocate.

IMPORTANT POINT
There is no specific provision for dismissing complaint for absence of complainant before recording sworn statement of complainant.

Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 256—Dishonour of cheque—Complaint dismissed due to absence of complainant—There is no specific provision for dismissing complaint for absence of complainant before recording sworn statement of complainant—However , after taking cognizance of complaint and issuing summons to accused, if complainant is absent, as per summons case procedure, Magistrate may invoke Section 256 Cr.P.C. and acquit accused—Since complainant has taken plea of illness , complainant must be given a chance to put forth his case and he should not be stopped at threshold—Impugned dismissing complaint set aside.
       Held:Under Section 190(1)(a) Cr.P.C., the Magistrate has to receive the complaint and thereafter, under Section 200 Cr.P.C. shall examine upon oath of the complainant and the witnesses present, if any for recording the sworn statement of the complainant and other witnesses and the Magistrate may take cognizance of the offences or he may dismiss the complaint under Section 203 Cr.P.C. on considering the oath of the complainant and witnesses. Of course, as pointed out by the learned counsel for the petitioner there is no specific provision for dismissing the complaint for the absence of the complainant before recording the sworn statement of the complainant. At the same time, this Court is not agreeing with the contention of the learned counsel for the petitioner that the complaint cannot be dismissed before according the sworn statement even if the complainant is absent before the Court. After taking cognizance of the complaint and issuing summons to the accused, if the complainant is absent, as per summons case procedure, the Magistrate may invoke Section 256 Cr.P.C. and acquit the accused. After filing the complaint and the Magistrate, on receiving the complaint fixes any date for recording the sworn statement of the complainant and the complainant is absent on that date and also on the subsequent dates fixed for the same, though there is no specific provision for discharging the accused, it would not be proper and justifiable to say that the Court has to wait compulsorily and indefinitely for the appearance of the complainant. In such situation, the Magistrate may close the complaint which would not amount to acquittal of the accused. Therefore, in this case, the learned Magistrate, by closing the complaint has not committed any illegality. At the same time, this Court considers the submissions made by the learned counsel for the petitioner that the representative of the complainant could not appear before the Court due to illness.
       5. In the interests of justice that the complainant must be given a chance to put forth his case and he should not be stopped at the threshold, the order passed by the learned Judicial Magistrate No.1, Erode made in C.M.P. No.2170 of 2010 dated 17.5.2010, dismissing the complaint is set aside. Therefore, the criminal revision petition is allowed. The complainant is directed to appear before the learned Magistrate within a period of four weeks from the date of receipt of copy of this order. (Paras 4 and 5)

O. C. Perivasamy VS D. Venkatesan @ Ravi