Selvakumar v. Subramani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.11.2011Coram:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.A.No.59 of 2010Selvakumar .. Appellant/Complainantvs.Subramani .. Respondent/AccusedPrayer: Criminal Appeal is filed under Section 378(4) of CriminalProcedure Code, against the order dated 11.08.2009 made in S.T.C.No.4of 2009, on the file of the learned Judicial Magistrate No.II,Namakkal and to allow the appeal.For Appellant : Mr.N.S.SivakumarFor Respondent : Mr.T.M.RamalingamJ U D G M E N TThe appellant herein is the complainant in S.T.C.No.4 of 2009,on the file of the learned Judicial Magistrate No.II, Namakkal.2.This appeal emanates from the criminal complaint filed underSection 138 of the Negotiable Instruments Act against the respondent.Before the lower court, parties were summoned. The learned JudicialMagistrate No.II, Namakkal dismissed the complaint, acquitting theaccused under Section 256 of Cr.P.C., for non appearance of thecomplainant.3.It is stated in the impugned order that inspite of thespecific direction made by the learned Magistrate for the appearanceof the complainant, the complainant was absent and hence, thepetition was dismissed for non appearance of the complainant.4.The learned counsel for the appellant strenuously contendedthat the complainant was appearing regularly in the earlier hearingsand on the hearing date i.e., on 11.08.2009, a petition was filed byhim under Section 256 of Cr.P.C., stating that his wife was sufferingfrom illness and he has to take her for treatment seeking to dispensewith his appearance but the learned Magistrate without consideringwhether the presence of the complainant was necessary, rejected hispetition and dismissed his complaint. He would emphasize and pointed https://hcservices.ecourts.gov.in/hcservices/ out that there was no imminent necessity for the appearance of thecomplainant and there is also no indication in the impugned order tothat effect. The learned counsel contended in vehemence that thelearned Magistrate failed to adopt a proper procedure and such nonobservance would tantamount to failure of justice.5.On the other hand, Mr.T.M.Ramalingam, the learned counsel forthe respondent supported the order and would submit that the case wasposted for trial and since the complainant was not present, the trialcould not be proceeded with and therefore, the learned trial judgehas rightly dismissed the complaint and acquitted therespondent/accused which does not warrant any interference.6.Heard the submissions made on either side and perused theimpugned order passed by the learned Magistrate.7.A bare reading of Section 256 of Code of Criminal Procedureitself obviously reveals that in the prosecution case, nothing wasrequired to be done by the complainant, especially when thepetitioner was duly represented by the Advocate, then it wasimperative upon the Magistrate to form his opinion by taking care ofthe matter as to whether it was appropriate to dismiss the complaintespecially in the present case when the advocate has filed a petitionunder Section 256 of Cr.P.C. to dispense with the presence of thecomplainant. From the contents of the impugned order of the trialcourt, it is noted that there was one singular default in theappearance on the part of the appellant/complainant and there was noindication that the case could not be proceeded with due to theabsence of the complainant. 8.It is well settled by the Hon'ble Supreme Court in the case ofAssociated Cement Co. Ltd., Vs. Keshavanand [AIR 1998 SC 596], thattwo constraints are imposed on the court for exercising the powerunder Section 256 of Cr.P.C. First is, if the court thinks that in asituation it is proper to adjourn the hearing, then the Magistrateshall not acquit the accused. Second is, when the Magistrateconsiders that personal attendance of the complainant is notnecessary on that day, the Magistrate has the power to dispense withthe attendance and proceed with the case. If the situation does notjustify the case being adjourned, the court is free to dismiss thecomplaint and acquit the accused. But if the presence of thecomplainant on that day was quite unnecessary, then resorting to thestep of axing down the complaint may not be a proper exercise of thepower envisaged in the section. The discretion must therefore, beexercised judicially and fairly without impairing the cause ofadministrative of criminal justice.9.The real test in such like matter is always good faith and itwould necessarily imply as to whether the complainant was absent forany good reason or not. There was nothing to indicate any lack of https://hcservices.ecourts.gov.in/hcservices/ good faith or due diligence on the part of the complainant toprosecute the complaint. At this juncture, it is relevant to refer tothe dictum laid down by the Hon'ble Supreme Court reported inAssociated Cements Company Vs. Keshavanand (1998 Crl.L.J.856) whereinin para 18, it has dealt with the legal requirements to be compliedwith by the lower courts as warranted by Section 256 of Cr.P.C. Itis held thus:18. Reading the Section in its entirety wouldreveal that two constraints are imposed on the Courtfor exercising the power under the Section. Firstis, if the Court thinks that in a situation it isproper to adjourn the hearing then the magistrateshall not acquit the accused. Second is, when theMagistrate considers that personal attendance of thecomplainant is not necessary on that day theMagistrate has the power to dispense with hisattendance and proceed with the case. When the Courtnotices that the complainant is absent on aparticular day the Court must consider whetherpersonal attendance of the complainant is essentialon that day for the progress of the case and alsowhether the situation does not justify the casebeing adjourned to another date due to any otherreason. If the situation does not justify the casebeing adjourned the Court is free to dismiss thecomplaint and acquit the accused. But if thepresence of the complainant on that day was quiteunnecessary then resorting to the step of axing downthe complaint may not be a proper exercise of thepower envisaged in the Section. The discretion must,therefore, be exercised judicially and fairlywithout impairing the cause of administration ofcriminal justice.....10.If the parameters of the above dictum of law as held by theHon'ble Supreme Court is applied to this case, the impugned orderpassed by the learned Magistrate is ex-facie illegal and notsustainable as there was nothing to indicate that there is lack ofgood faith or due diligence to prosecute the complaint. Theprinciples of natural justice requires the court to give opportunityto the parties though they failed to use such opportunity at timesand the party having a fair case should not suffer because of hisabsence.In the result, the Criminal Appeal is allowed and the orderpassed by the learned Judicial Magistrate No.II, Namakkal inS.T.C.No.4 of 2009 dated 11.08.2009 is hereby set aside. Thecomplainant is directed to appear before the trial court within aperiod of three weeks from the date of receipt of a copy of this https://hcservices.ecourts.gov.in/hcservices/ order and the learned trial judge is directed to revive the complaintin question and proceed with the same in accordance with law.Sd/Assistant Registrar /True Copy/Sub Assistant Registrar DPTo1.The Judicial Magistrate Court-II, Namakkal.2.The Chief Judicial Magistrate, NamakkalCrl.A.No.59 of 2010LA(CO)PKS16/12/2011