1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.07.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.A.(MD) No.182 of 2011 Chellamani @ Selvamani ... Appellant Vs Murugan ... Respondent Criminal Appeal is filed under Section 378 of the Criminal Procedure Code to set aside the order of Judicial Magistrate, Nilakottai, Dindigul District in C.C.No.40 of 2009 dated 11.06.2010 by allowing this criminal appeal and directing the Judicial Magistrate, Nilakottai to take on file in C.C.No.40 of 2009 within the stipulated period. For Petitioner : Mr.A.Haja Mohideen ***** O R D E R The petitioner is the complainant in C.C.No.40 of 2009, on the file of the learned Judicial Magistrate, Nilakkottai. Due to his non- appearance, on 11.06.2010, the Court below dismissed the complaint and acquitted the accused under Section 256(1) Cr.P.C. Hence, this appeal. The short facts are set out hereunder:- 2. On 31.03.2010, the Court below framed charges against the accused which were read over to him and he denied the same. On that day, at the request of the accused, the Court below directed to pay process for recalling P.Ws.1 to 3 for cross-examination and posted the case on 06.04.2010. On 06.04.2010, the process was not paid. Even on 15.04.2010, the next date of hearing, the process was not paid and an application under Section 317 Cr.P.C. filed by the accused was allowed. On that date, the complainant was also not present and his absence was condoned under Section 256 (1) Cr.P.C. On 14.05.2010, when the case was taken up for hearing, the complainant was absent and there was no representation. Hence, the Court below directed him to appear in person on 11.06.2010. On 11.06.2010, he was not present and there was no representation on behalf of him. Hence, the impugned order came to be passed. 3. Before dismissing the complaint, as per the well settled provisions of law, in case, if the complainant was absent before the Court below, it should have issued notice to him. The Court below has to see whether the presence of the complainant was required on the particular date of hearing and if his presence is not required for a particular date of hearing for the progress of the case, then the Court may condone his absence and adjourn the case to some other date. In the present case, the above said principles have not been followed. The fact remains that the accused side represented that they have to recall P.Ws.1 https://hcservices.ecourts.gov.in/hcservices/ 2 to 3, for which they had to pay batta, but they had not paid batta. In these circumstances, on 11.06.2010, the presence of the complainant was not at all necessary. Hence, the Court below could have adjourned the case to some other date. But, that was not done. 4. In such view of this matter, this Court is of the opinion that one more opportunity can be extended to the complainant and hence, the order challenged before this Court is liable to be set aside and accordingly, set aside. In the result, the appeal is allowed directing the Court below to restore the complaint on file and proceed it in accordance with law. sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar (C.S) To: (1) The Judicial Magistrate, Nilakottai, Dindigul District (2) The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. + 1 cc to Mr.A.Haja Mohideen, Advocate, SR No.22905 Crl.A.(MD) No.182 of 2011 14.07.2011 ssm RJ/19.8.11 2p/4c https://hcservices.ecourts.gov.in/hcservices/