A Magistrate must not dismiss a complaint for the absence of the complainant, emphasizing the need to proceed based on merits, especially in Negotiable Instruments Act cases.

ORDER :

1. This Criminal Revision has been filed praying to set aside the Judgment dated 02.07.2019 passed in Criminal Appeal No. 14 of 2019 by the learned Principal District and Sessions Judge, Cuddalore confirming the Judgment dated 12.04.2016 passed by the learned Judicial Magistrate No.II, Chidambaram in STC. No. 313 of 2013.

2. The Revision Petitioner herein is the Complainant. As per the averments in the Complaint filed under Sections 138 to 142 of The Negotiable Instruments Act, 1881, during the end of month of December 2012, the Respondent herein borrowed a sum of Rs.2,00,000/- from the Revision Petitioner/Complainant and promise to repay the amount with interest. Subsequently, the Respondent/Accused issued a cheque dated 01.02.2013 bearing No. 162933 drawn on City Union Bank, Chidambaram. When the Revision Petitioner/Complainant presented the cheque for collection, it was returned with an endorsement “funds insufficient”. Therefore, the Petitioner herein/Complainant issued notice to the Respondent on 14.02.2013 and the same was received and acknowledged by the Respondent herein on 16.02.2013. However, the Respondent has neither sent any reply nor paid the cheque amount. Therefore, the Revision Petitioner/Complainant had preferred the Complaint in STC. No. 313 of 2013 before the learned Judicial Magistrate No.II, Chidambaram.

3. The learned Judicial Magistrate - II, Chidambaram examined the Complainant as P.W-1. The case was adjourned several times to enable the Accused to cross-examine the Complainant/P.W-1. In spite of several adjournments, the learned Counsel for the Accused had not cross-examined the Complainant/P.W-1. However, on the specified hearing date, the Complainant was absent. The learned Judicial Magistrate, instead of proceeding to the next stage, straight away dismissed the Complaint and acquitted the Accused by the judgment dated 12.04.2016. For ready reference, the judgment dated 12.04.2016 reads as follows:-

“A case filed U/s.138 NI Act against an Accused by Thiru. V.R. Iyappan.

2. The complainant called absent and no representation.

Accused present. For the past three and a half months, no further witness produced on the side of complainant, but in this juncture, complainant absent and no representation, hence, this case is dismissed under Section 256 Cr.P.C. to avoid an unnecessary calling and to save the golden time of the Court. The Accused is acquitted.”

4. Assailing the Judgment of acquittal dated 12.04.2016, the Complainant had preferred the Appeal before the learned District Judge, Cuddalore. The District Judge, by Judgment dated 02.07.2019 dismissed the Appeal and confirmed the Judgment of acquittal passed by the trial court. Aggrieved by the same, the Complainant is before this Court.

5. The learned Counsel for the Petitioner submitted that the Courts below committed a legal error in acquitting the Respondent/Accused, merely because the Complainant was absent. Even in the absence of the Complainant, the Court below ought to have proceeded with the case for disposal on merits. In support of his contention, the learned Counsel for the Petitioner relied on the following reported rulings:

(i) Sakthivel Vs. Subramaniyan , 2017 (1) L.W. (Crl.) 83

The relevant portion is extracted hereunder:

“10. It cannot be lost sight of that the CRIMINAL PROCEDURE CODE does not envisage for dismissal of complaint or discharge of an Accused when the complainant had remained absent on the given date of hearing. It is not essential/necessary in every case that because of the non-appearance of the Complainant, the Compl