The main legal point established in the judgment is that the dismissal of a complaint under Section 256 Cr.P.C. can only be made after it is taken on file and summons are issued to the accused. The court emphasized the necessity of the complainant's presence and examination on oath before taking the complaint on file.

JUDGMENT

(Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. to set aside the order dated 12.11.2021 in unnumbered S.T.C.No. of 2020 on the file of Judicial Magistrate, Avinashi and direct to assign CMP number.)

1. An order of dismissal of a private complaint filed by the petitioner, came to be passed by the Judicial Magistrate, Avinashi, invoking Section 256 Cr.P.C. is put to challenge in the present Criminal Original Petition.

2. The case of the petitioner is as under:-

i) The petitioner is a Partnership Firm engaged in the business of manufacturing and selling of knitted hosiery garments. A1 is a Private Limited Company engaged in the business of purchase and sales of knitted hosiery garments and A2 and A3 are the Directors of A1 Company.

ii) The accused were dealing with the complainant on credit basis in purchasing knitted hosiery garments during the year 2019 and 2020. The complainant had manufactured the knitted hosiery garments and supplied to the accused as demanded by them and had raised invoices for the same.

iii) To discharge the liability, the accused had issued various cheques from 8.2.2020 to 16.2.2020 which were dishonoured when presented for payment with the endorsement "Funds Insufficient" and thereby, a sum of Rs.33,37,657/- was due to be paid by accused. iv) The complainant had issued a notice to the accused on 18.5.2020 calling upon them to settle the amounts and thereupon, they had paid a sum of Rs.15,00,000/- and thereafter, they failed to settle the remaining amount due to the complainant.

v) The accused, knowing well that they have no sufficient funds in their account, had issued the cheques and they have not come forward to settle the dues fully, even after receipt of statutory notice and thereby, they have committed an offence punishable under Section 138 of the Negotiable Instruments Act and hence, the petitioner had filed the private complaint before the Judicial Magistrate, Avinashi on 16.7.2020.

vi) The complaint was returned for certain compliances on 17.7.2020 and after compliances, it was re-presented on 24.7.2020 Again, the complaint was returned on 28.7.2020 and it re-presented on 22.9.2020. Once again it was returned on 25.9.2020 and after compliance, it was re-presented on 12.10.2020 in unnumbered S.T.C. of the year 2020.

vii) Whileso, when the complaint was still in unnumbered stage, the matter had been taken up by the Magistrate on 12.11.2021 and the learned Judicial Magistrate had dismissed the complaint under Section 256 Cr.P.C. with the following order:-

"Complainant called absent. No representation. Past several hearings complainant called absent. No representation. Complainant is not interested to proceed the case further. Hence the complaint is dismissed U/S 256 Cr.P.C."

viii) The present criminal original petition has been filed seeking to set aside the order.

3. Learned counsel for the petitioner would submit that the a complaint has been filed for offence under Section 138 of the Negotiable Instruments Act and despite the fact that the petitioner complied with the returns, the court had repeatedly returned the Application stating one reason or the other. The petitioner had represented the petition and later, during the covid pandemic period, there was no proper functioning of the courts and the case had been taken on file on 12.11.2021 and the court, finding that there was no representation, had called the complainant absent and dismissed the complaint under Section 256 Cr.P.C. even before numbering the Application.

4. The learned counsel for the petitioner would further submit that dismissal of the complaint under Section 256 Cr.P.C. can be only at the post cognizance stage and in this case, even prior to the cognizance being taken, the Trial Court had dismissed the Application. He would submit that dismissal of complaint under Section 256 Cr.P.C. can be resorted to only after the complaint is taken on file. He would also submit that as per t