CRL A/1671/2002 of S.RAGHAVAPERUMAL @ RAMADOSS Vs 1.G.NATARAJ,S/O.GURUSAMY NAIDU on 27 December 2002

:JUDGMENT

The above Criminal Appeal is directed against the judgment dated 3.9.2002 rendered in C.C.No.85 of 1995 by the Court of District Munsif cumJudicial Magistrate, Vilathikulam,thereby dismissing the complaint filed bythe appellant against the respondents for an offence punishable under Section138 r/w 142 of Negotiable Instruments Act, and Section 420 of the I.P.C. andacquitting the respondents under Section 256 of Cr.P.C. on account of theappellant having not taken proper steps in the private complaint initiated byhim.

2. Heard the learned counsel for the appellant and perused therecords. Proof affidavit has been filed by the learned counsel for thepetitioner for having served notice on all the respondents and hence serviceis held sufficient. Respondents are called absent and there is no representation on their behalf. Hence this Court is left with no choice butto decide the above appeal on merits having regard to the materials placed onrecord and upon hearing the learned counsel for the appellant.

3. The trial Court has simply dismissed the complaint filed by the appellant and acquitted the respondents under Section 256 of the Cr. P.C.on ground that on the part of the appellant/complainant, he has not comeforward to prosecute the complaint filed by him on 20.4.1995 against therespondents seeking justice for an offence punishable under Section 138 r/w142 of the Negotiable Instruments Act, and Section 420 of the I.P.C. said tohave been committed on the part of the respondents, on a dishonoured chequefor a sum of Rs.1,00,000/-, which was returned unpaid since the respondentsdid not have sufficient funds in their account.

4. The lower Court has simply passed an order stating that, since for a long time the complainant did not come forward to prosecutethe complaint, he has no interest in prosecuting the case against therespondents and hence dismissed the said complaint thereby acquitting therespondents in spite of the Non Bailable Warrant issued already are pendingagainst them, without assigning any valid or tangible reason and hence, theappellant has come forward to prefer the above Criminal Appeal on certaingrounds as pleaded in the grounds of appeal.

5. The only point for consideration in the above circumstances is, "whether the lower Court has complied with the legal requirements as warranted by the Section and the proposition of law as propounded by theHonourable Apex Court in its judgment rendered in ASSOCIATED CEMENT CO.LIMITEDVs. KESHVANAND (AIR 1998 SUPREME COURT 596)", wherein, in paragraph 18, ithas held:

".....

18. Reading the Section in its entirety would reveal that two

constraints are imposed on the Court for exercising the power under theSection. First is, if the Court thinks that in a situation it is proper toadjourn the hearing then the magistrate shall not acquit the accused. Secondis, when the Magistrate considers that personal attendance of the complainantis not necessary on that day the Magistrate has the power to dispense with hisattendance and proceed with the case. When the Court notices that thecomplainant is absent on a particular day the Court must consider whetherpersonal attendance of the complainant is essential on that day for theprogress of the case and also whether the situation does not justify the casebeing adjourned to another date due to any other reason. If the situationdoes not justify the case being adjourned the Court is free to dismiss thecomplaint and acquit the accused. But if the presence of the complainant onthat day was quite unnecessary then resorting to the step of axing down thecomplaint may not be a proper exercise of the power envisaged in the section.The discretion must, therefore, be exercised judicially and fairly withoutimpairing the cause of ad ministration of criminal justice......."

6. If the parameters of the above dictum of law as held by the Honourable Apex Court is applied to the order passed by the trialCourt, needless to mention that the order passed by the Court of DistrictMunsif cum Judicial Magistrate, Vilathikulam is ex facie illegal and notsustainable in law.

7. The trial Court is cautioned against passing such orders hereafter and shall take sufficient care and caution prior to passingsuch slipshod orders, without any ground for passing such order under theprovision of which the same has been passed or without assigning valid ortangible reasons in support of the order passed. Such attitude adopted on thepart of the lower Court only gives way for this Court to cause interferenceinto the same and hence, the following order.

In result,

i.the above Criminal Appeal succeeds and the same is allowed;

ii.the judgment dated 3.9.2002 rendered in C.C No. 85 of 1995 by the Court ofDistrict Munsif cum Judicial Magistrate, Vilathikulam, is set aside; iii.the case is remanded to the trial Court for continuation of the trialprocedure from where it has been left with on the complaint of the appellantin accordance with the procedures established by law, so as to deliver ajudgment on merit and in accordance with law.

Index: YesInternet: YesTo1. The District Munsif cum Judicial Magistrate,Vilathikulam.

2. -do- thro' theChief Judicial Magistrate

3. The Public Prosecutor,Madras.