IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.08.2011 CORAM THE HONOURABLE MR. JUSTICE T. MATHIVANAN Criminal Appeal No.505 of 2011 Mr. N.Krishna Mohan ... Appellant/Complainant Vs Mr.S.K.Karnakaran, Partner, City Star, No.13/1, Cenotaph I Lane, Teynampet, Chennai – 18. ... Respondent/Accused This Memorandum of Criminal Appeal filed under section 378 of the Cr.P.C is directed against the order of dismissal of the complaint dated 06.06.2011 and made in the case in C.C.No.8251 of 2007 on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai. For appellant : Mr.M.Aravind Subramaniam JUDGMENT The appellant herein has filed the complaint in C.C.No.8251 of 2007 against the respondent herein before the learned IX Metropolitan Magistrate, Saidapet, Chennai under Section 200 of Cr.P.C., to deal with the respondent under Sections 138 of the Negotiable Instruments Act, 1881. 2. In the complaint the appellant has alleged that he had paid a sum of Rs.3,00,000/- to the respondent as an advance for the construction of a flat as per the agreement entered into between him and the respondent. The respondent being a builder had failed to develop the project in time and as such there was an inordinate delay in constructing the flat and as a result of which, the appellant had revoked the agreement and requested the respondent to refund the advance of Rs.3,00,000/-. However, the respondent had not chosen to refund the advance amount. 3. Being aggrieved with this, the appellant had filed an Original Petition in O.P.No.60 of 2002 before the District Consumer Disputes Redressal Forum (South) Chennai, for the refund of the above said amount. On 03.12.2004, the District Consumer Disputes Redressal https://hcservices.ecourts.gov.in/hcservices/ Forum had directed the respondent/accused to refund the amount of Rs.3,00,000/- along with interest at the rate of 12% per annum and also to pay a sum of Rs.10,000/- towards compensation for mental agony and an another sum of Rs.1,000/- towards costs of the petition. Together, the respondent/accused was directed to pay a sum of Rs.4,70,000/-. 4. As the respondent/accused did not comply with the above direction, the appellant filed an execution petition vide E.P.No.90 of 2005 in O.P.No.60 of 2002. Thereafter, on 21.07.2006 the respondent/accused had acknowledged his liability for a sum of Rs.5,07,183/- proportionately, before the abovesaid forum, barring a sum of Rs.49,000/- paid through ICICI Bank by way of Demand Draft dated 13.07.2006. The respondent by way of discharging his liability had issued the following four cheques. S.No. Cheque No. Date Amount (Rs.) 1. 186546 21.07.2006 75,000/- 2 186547 05.08.2006 1,25,000/- 3 186548 19.08.2006 1,25,000/- 4. 186549 02.09.2006 1,33,183/- Total 4,58,183/- 5. When those cheques were presented they were bounced back with the endorsement as 'insufficient funds". Hence after issuing a statutory notice as required under Section 138(b) of the Negotiable Instruments Act, 1881, the appellant had filed a complaint before the above said Magistrate's Court. It appears from the record that a Non-bailable Warrant was pending unexecuted against the respondent/accused. 6. When the matter stood thus, the appellant was not able to appear on 06.06.2011, on which date the case stood posted. On account of his absence the learned IX Metropolitan Magistrate, Saidapet, Chennai has passed an order dismissing the complaint filed by the appellant on 06.06.2011 with the following observation "complainant absent. No representation. Accused NBW pending since 25.03.2009. Steps not taken inspite of the direction. Hence the complaint is dismissed U/s.256(1) Cr.PC." Challenging the legality of the order of dismissal, the appellant has approached this Court by way of this appeal with a special leave petition. 7. Leave was granted on 09.08.2011 8. Mr.Aravind Subramaniam, learned counsel for the appellant has submitted that the order of dismissal by the learned IX Metropolitan Magistrate, Saidapet, Chennai, is absolutely erroneous and even without giving proper notice to the complainant, the learned https://hcservices.ecourts.gov.in/hcservices/ IX Metropolitan Magistrate, Saidapet, had proceeded to dismiss the complaint only on trivial ground. 9. The learned counsel has also added that already a Non- bailable Warrant was pending against the respondent/accused. But, despite a direction, the Non-bailable Warrant was not executed by the concerned police. Under these circumstances, the appellant, on account of some unavoidable reasons was not able to make his presence on 06.06.2011 and without considering the reason for his absence, the learned IX Metropolitan Magistrate, Saidapet had dismissed the complaint and that the approach of the learned Judicial Magistrate is perverse and is in total negation of the principle of natural justice. The learned counsel in support of his argument has placed reliance upon the following two decisions of this Court (a) Shalimar Paints Ltd. Rep. by its authorised representative K.Rangarajan Vs. Muralidharan Hardware Mart, Chennai, rep. by its Prop. Muralidharan, reported in 2007 (2) MLJ (Crl) 1633. (b) Palaniappan Vs. TMT.Neelambal and Another, reported in 2008 (1) MLJ (Crl) 947. in which, the learned single Judge of his Court has held as follows "The learned Judicial Magistrate should have adjourned the case to some other date to enable the complainant to be present before the Court and in the meanwhile, necessary notice should have been sent to the complainant. In these circumstances, this Court finds that legal grounds are available for allowing this appeal." 10. This Court has considered the submissions made by Mr.Aravind Subramaniam, learned counsel for the appellant. This Court has also gone through the order of the learned IX Metropolitan Magistrate, Saidapet as well as the decisions quoted by the learned counsel for the appellant. Having regard to the submissions and other related facts and circumstances, this Court finds that there is substance in the arguments advanced by the learned counsel for the appellant and therefore, at the stage of admission, itself, this Court is of the view that the appeal may be allowed after setting aside the order of dismissal and the case in C.C.No.8251 of 2007 may be remitted back to the trial Court to dispose on merit, after providing sufficient opportunity to both sides to adduce their respective evidences both oral and documentary. 11. Accordingly, the appeal stands allowed. The order of dismissal dated 06.06.2011 and made in C.C.No.8251 of 2007 on the file of the learned IX Metropolitan Magistrate, Saidapet, is set aside and the case in C.C.No.8251 of 2007 is remitted back to the trial Court and the learned IX Metropolitan Magistrate, Saidapet is directed to take up the case in C.C.No.8251 of 2007 on its original file after giving notice to the respondents and dispose of the same on merits after providing adequate opportunity to both sides, so as to enable them to adduce their respective evidence both oral and https://hcservices.ecourts.gov.in/hcservices/ documentary. The learned IX Metropolitan Magistrate, Saidapet, is further directed to dispose of the above said case within a steel framed time of three months from the date of receipt of a copy of this order without further loss of time, under intimation to this Court. ars Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The IX Metropolitan Magistrate, Saidapet, Chennai. 2.Do through The Chief Metropolitan Magistrate, Saidapet, Chennai + 1 cc to Mr. Aravind Subramanian, Advocate SR No.49990 VG(CO) SR/6.9.2011 Crl.A.No.505 of 2011 https://hcservices.ecourts.gov.in/hcservices/