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High Court of Judicature at Madras
M. VENUGOPAL, J.
V. Kumaravel
Versus
B. Muralikrishna
Crl.A. No. 680 of 2010
Decided on: 09-09-2014
Non-appearance - Criminal Appeal - Sections 138, 141, 142 of Negotiable Instruments Act, Section 256 of Cr.P.C. - The court discussed the provisions of Section 256 of Cr.P.C. and its application in the context of non-appearance of the complainant, emphasizing the need for a sound exercise of judicial discretion and adequate opportunities provided to the complainant. The court affirmed the order of the trial court, stating that it did not suffer from any legal infirmities.
Fact of the Case:
The appellant/complainant filed a complaint under Sections 138, 141, and 142 of the Negotiable Instruments Act against the respondent/accused. The trial court dismissed the complaint and acquitted the accused under Section 256 of Cr.P.C. due to the non-appearance of the complainant.
Finding of the Court:
The court affirmed the trial court's order, stating that it did not suffer from any legal infirmities.
Issues: Non-appearance of the complainant, application of Section 256 of Cr.P.C., dismissal of the complaint, and acquittal of the accused.
Ratio Decidendi: The court emphasized the need for a sound exercise of judicial discretion and adequate opportunities provided to the complainant. It discussed the provisions of Section 256 of Cr.P.C. and its application in the context of non-appearance of the complainant.
Final Decision: The Criminal Appeal was dismissed, and the order of the trial court was affirmed.
1. The Appellant/Complainant has preferred the instant Criminal Appeal before this Court as against the order dated 23.08.2010 in C.C.No.442 of 2009 (in dismissing the complaint) passed by the learned Judicial Magistrate No.2, Erode.
2. The Learned Judicial Magistrate No.II, Erode, on 23.08.2010 in C.C.No.442 of 2009 passed the impugned order in question observing as under -
“The case called on for hearing to-day to which it had been posted. The complainant not being present in person. No petition filed on behalf of the complainant and notice issued to the complainant. No response. Hence, complaint is dismissed. Accused is acquitted u/s.256, Criminal Procedure Code”.
3. Today, when the matter is taken up for hearing at 2.55 p.m., there is no representation on the side of the Appellant. Also on 25.07.2014, there was no representation on his side. However, on that day, there was representation on the side of the Respondent and the matter was directed to be listed on 01.08.2014. Furthermore, on 22.08.2014, when the matter was listed, none appeared on behalf of the Appellant and the matter was directed to be listed on 27.08.2014 as first case in final hearing.
4. On 27.08.2014, this Court had directed the Registrar (Judicial) of this Court to call for the immaterial records in C.C.No.442 of 2009 on the file of the learned Judicial Magistrate No.II, Erode through Special Messenger and further the matter was directed to be listed on 09.09.2014. Accordingly, the immaterial records were received on 04.09.2014.
5. At this stage, on perusal of the Memorandum of Grounds by this Court filed by the appellant/complainant in the present Appeal, it is quite clear that the Appellant/Complainant had taken a plea that on 23.08.2010, the Appellant/Complainant, owing to illness could not appear before the trial court and the dismissal of the complaint by the Trial Court on that score was not a proper one in the eye of Law.
6. Also it transpires that the stand of the Appellant/Complainant is that the reason given by the Trial Court in dismissing the complaint was not sound and proper and as such the same is to be set aside, in furtherance of substantial clause of justice.
7. It is not in dispute that the Appellant/Complainant filed the complaint under Sections 138, 141 and 142 of Negotiable Instruments Act against the Respondent/Accused before the trial Court on 07.09.2009. The sworn statement of the appellant/complainant was taken by the Learned Judicial Magistrate No.II, Erode on 06.10.2009 and the summons was ordered to be issued to the Respondent/Accused on payment of process fee by the Appellant/Complainant and the next hearing date was given as 09.12.2009.
8. It transpires from the notes paper in C.C.No.442 of 2009 on the file of the trial Court that, on 23.06.2010, the Complainant was called absent and no petition was filed on his behalf. However the accused was called absence and the petition was filed under Section 317 Cr.P.C. and the same was allowed. Furthermore, the trial Court directed the issuance of notice to the complainant by 27.07.2010.
9. On 27.07.2010, the trial Court, in the notes paper in C.C.No.442 of 2009 had recorded that the complainant was called absent and no petition was filed and also that the accused was called absent and on his behalf the petition was filed and allowed. That apart, the Trial Court ordered issuance of notice to the complainant by 23.08.2010.
10. On 23.08.2010, the complainant was called absent and the Trial Court, in the notes paper had recorded that notice was issued and since there were no response, complaint was dismissed and the accused was acquitted under Section 256 Cr.P.C.
11. A cursory perusal of the immaterial records in C.C.No.442 of 2009 on the file of the trial Court shows that a final notice in D.No.1073/02.08.2010 was issued by the trial Court addressed to the Appellant/Complainant wherein it was, interalia stated that the Appellant/Complainant has not appeared before the Court fo
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