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P.DEVADASS
Mariyappan – Appellant
Versus
T. Baskar – Respondent
Based on the provided legal document, the key points are as follows:
The case involves a revision filed by the complainant in a cheque bouncing case under Section 138 of the Negotiable Instruments Act, challenging the dismissal of the complaint and the discharge of the accused (!) .
The original complaint was filed under Section 200 of the Criminal Procedure Code and taken cognizance by the Magistrate, who subsequently issued summons under Section 204 (!) .
The impugned order dismissed the complaint due to the absence of the parties and the pendency of a non-bailable warrant (NBW) against the accused, who was also absconding (!) (!) .
The revision petitioner’s counsel contended that the order was unsustainable because the accused was already absconding and NBW was pending against him, and that the complaint should not be dismissed solely on the grounds of the accused’s abscondance or inaction of the complainant in executing the NBW (!) (!) .
The court clarified that in cases under Section 138 of the Negotiable Instruments Act, which is a bailable offence, the procedure involves the complaint and summons, and the execution of NBW is the responsibility of the police, not the complainant (!) .
It was emphasized that when the accused is absconding and NBW is pending, the case cannot proceed or be tried in the absence of the accused, and the trial cannot be conducted without their presence or cooperation (!) .
The court held that dismissing the complaint solely because the accused is absconding or due to inaction in executing NBW is not legally sustainable, and the order of dismissal was therefore set aside (!) (!) .
The case was remanded to the Magistrate with directions to restore the complaint, fix a hearing date, issue summons to the complainant, and take necessary steps to enforce the attendance of the accused by executing the NBW lawfully (!) (!) (!) .
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In this revision, a complainant in a cheque bouncing case challenges the dismissal of his complaint and the discharge of the accused.
2. The revision petitioner filed a private complaint under Section 200 Cr.P.C. as against the respondent alleging his commission of an offence under Section 138 of N.I. Act. The learned Judicial Magistrate No.I, Nagapattinam after enquiry conducted under Sec.200 Cr.P.C. took cognizance thereon in S.T.C. No.197 of 2008 and issued summons to the respondent under Sec.204 Cr.P.C.
3. On 23.9.2010, the learned Magistrate passed the following impugned order, ultimately discharged the accused from the case.
"Both parties called absent. NBW pending. No representation is also made. Steps not taken. The case is pending from 8 hearings being the case summary nature. Hence, the complaint is dismissed for non prosecution. The NBW recalled accused is discharged.''
4. The learned counsel for the revision petitioner would contend that the order of the learned Magistrate is unsustainable in law because it is not in accordance with law. For no fault of the complainant, the accused has been discharged who was already absconding and NBW was also pending against him.
5.
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