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2016 Supreme(Mad) 3342
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. DEVADASS, J.
Mariyappan - Petitioner
Vs.
T. Baskar - Respondent
Crl.R.C.No.259 of 2011
Decided On : 26-10-2016
For the Petitioner: Mr. S. Vadivel Murugan.
For the Respondent: Mr. S. Soundhar.
Headnote:
Criminal Produce Code, 1973 - Sections 200 and 204 - N.I. Act – Section 138 – Dishonoured of Cheque –Dismissal of Complaint - Counsel for revision petitioner would contend that order of learned Magistrate is unsustainable in law because it is not in accordance with law - For no fault of complainant, accused has been discharged who was already absconding and NBW was also pending against him - Held, Complaint cannot be dismissed for abscondance of accused when NBW is pending against him. A complaint cannot be dismissed on ground that no steps has been taken by complainant to execute NBW because under Code of Criminal Procedure, NBWs are addressed to police for execution - Steps to execute NBW for apprehending accused has to be taken by police and not by complainant - In this case, accused is absconding, NBW was also pending - In such circumstances, case cannot be proceeded with because no evidence shall be recorded by trial Court in absence of accused - When NBW is pending in a private complaint case, question of conducting trial will not arise - From above, it is very clear that impugned order passed by trial Court is unsustainable in law - Revision is allowed.
Based on the provided legal document, the key points are as follows:
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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 (!) .
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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 (!) .
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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 (!) (!) .
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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 (!) (!) .
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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 (!) .
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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 (!) .
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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 (!) (!) .
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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 (!) (!) (!) .
Please let me know if you require further analysis or assistance.
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. The learned counsel for the respondent supports the impugned order of the learned Magistrate.
6. I have anxiously considered the rival submissions, the impugned order and the entire materials on record.
7. In a cheque bouncing case, the offence under Sec.138 N.I. Act is bailable offence. The Magistrate has to follow private complaint procedure prescribed for trial of a summons case.
8. For the absence or death of a complainant, such complaint can be dismissed. But such a complaint cannot be dismissed for the absence of the accused. Complaint cannot be dismissed for the abscondance of the accused when NBW is pending against him. A complaint cannot be dismissed on the ground that no steps has been taken by the complainant to execute the NBW because under the Code of Criminal Procedure, NBWs are addressed to the police for execution. Steps to execute NBW for apprehending the accused has to be taken by the police and not by the complainant.
9. In this case, the accused is absconding, NBW was also pending. In such circumstances, the case cannot be proceeded with because no evidence shall be recorded by the trial Court in the absence of the accused. When NBW is pending in a private complaint case, question of conducting the trial will not arise. From the above, it is very clear that the impugned order passed by the trial Court is unsustainable in law.
10. In view of the foregoings, ordered as under:
(1) This revision is allowed.
(2) The impugned order passed by the learned Judicial Magistrate No.I, Nagapattinam in S.T.C. No.197 of 2008 is set aside.
(3) The said Magistrate will restore the complaint in S.T.C.No.197 of 2008 to his file.
(4) The said Magistrate will fix a hearing date and issue summons to the revision petitioner/complainant.
(5) The learned Magistrate will also take steps to enforce the attendance of the accused by directing the police to execute the N.B.W. in accordance with law.
