IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.10.2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM CRL.A.No.1462 of 2003 Jayaseelan ... appellant/complainant versus Bellan ...respondent/accused Criminal Appeal filed against the Judgment passed in C.C.No.392 of 2002 dated 29.07.2003, on the file of the Judicial Magistrate, Udagamandalam. For Appellant : Mr.G.Kumud Jhabakh For Respondent : Mr.J.Franklin J U D G M E N T The appellant herein is the complainant in C.C.No.392 of 2002, on the file of the Judicial Magistrate, Udagamandalam and the respondent herein is the accused in the said case. The appellant herein filed a private complaint under Section 138 of the Negotiable Instruments Act against the respondent herein. On 29.07.2003, as the complainant was not present before the Court, the learned Magistrate acquitted the accused under Section 256 Cr.P.C. Challenging the said acquittal, the complainant had preferred this criminal appeal. 2. The learned counsel appearing for the appellant submitted that the complainant has been examined as P.W.1 on 28.04.2003 and he was also present on several hearings. But the accused was absent for several hearings. Even non-bailable warrant was pending against the accused on 26.06.2003. The non- bailable warrant issued against the accused also was recalled on his surrender and he was questioned under Section 313 Cr.P.C. Thereafter, it was posted for examining the defence witnesses. The learned counsel for the appellant further submitted that on 24.07.2003, the complainant was absent since he had come to Madras for attending a ceremony and he was absent even on 28.07.2003. A petition was filed for the absence of the complainant. But the learned Magistrate posted the case on the https://hcservices.ecourts.gov.in/hcservices/ next day, i.e., on 29.07.2003, even on that day, as the complainant was in Madras, he did not go to Udagamandalam for appearing before the court. Even on that day, an application was filed under Section 256 Cr.P.C seeking condonation for the non- appearance of the complainant, but the learned Magistrate dismissed the said petition and acquitted the accused. 3. The learned counsel appearing for the respondent submitted that on 24.07.2003, the application filed by the accused for recalling P.W.2 for cross examination was allowed and the case was posted on 04.07.2003 and 11.07.2003 for cross examining the complainant, but the complainant was absent. On 24.07.2003, 28.07.2003 and 29.07.2003 for three hearings the complainant did not appear and he could not be cross examined by the accused. Only in the said circumstances, the learned Magistrate had rightly passed an order acquitting the accused under Section 256 Cr.P.C. 4. This Court considered the submissions of both parties and perused the records. 5. A certified copy of the docket order of the case is filed in the typed set. As per the docket entry, on 28.04.2003, the complainant was examined as P.W.1 and the case was adjourned to 30.04.2003. But on 30.04.2003, the accused was absent and for the subsequent hearings also, the accused was absent. 16.05.2003, non-bailable warrant was issued against the accused and it was recalled on 27.06.2003. The petition filed by the accused to recall P.W.1 was also allowed on 04.10.2003 and the case was posted to 11.07.2003 for cross examination of P.W.1. On 11.07.2003, both the complainant and the accused had been present, but the case had been adjourned to 24.07.2003, but it is not known as to why P.W.1 was not cross examined on that day. On 24.07.2003 and 28.07.2003, the complainant was absent and a petition was filed on behalf of the complainant and it was also allowed. After allowing the petition filed for the absence of the complainant on 28.08.2003, the case has been posted to 29.08.2003. Even on that day, the complainant was absent and therefore the learned Magistrate had passed an order under Section 256(3) Cr.P.C. The question now arises for consideration is whether the order passed by the learned Magistrate is legally sustainable. It appears that from 13.12.2002, the complainant had been appearing before the Court for several hearings and he was also examined as P.W.1. While so, the learned Magistrate need not have invoked the provision under Section 256(3) Cr.P.C. Further as per the certified copy of the order furnished to the appellant, it is mentioned as follows: "The case was called on for hearing to-day to which it has been posted/adjourned. The complainant not being present either in person or https://hcservices.ecourts.gov.in/hcservices/ by pleader, the accused is acquitted under Section 256 Criminal Procedure Code." But as per the docket entry, it is different as follows: "Accused present. Complainant absent petition filed under Section 256 Cr.P.C and dismissed. Inspite of sufficient opportunities given, complainant not complied the direction of this court. This case is posted for cross examination of complainant. But for the reasons known to the complainant, he is not appeared, it appears that the complainant is purposely not attending the court for obvious reasons. Hence this court feels that no more opportunity can be given, and the complaint is dismissed for non appearance of complainant and the accused acquitted under Section 256 Cr.P.C." 6. As per the order passed by the learned Magistrate, no petition under Section 256(3) Cr.P.C was filed, but as per the docket entry an application under Section 256(3) has been filed by the complainant. Two different particulars in the order are available on record. 7. This Court is unable to understand how the learned Magistrate could pass order with two different particulars. In this case, it cannot be said that the complainant played some delaying tactics. As the complainant was regular in attending the court on earlier occasions, in the interest of justice, this Court feels that the complainant must be given a chance to establish his case. 8. For the above said reasons, the criminal appeal is allowed. The order passed by the learned Magistrate dated 29.07.2003 acquitting the accused under Section 256(3) Cr.P.C is set aside. The learned Magistrate is directed to proceed with the case as per law. Both the complainant and the accused are directed to appear before the trial Court on 10.11.2010. ksr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Judicial Magistrate, Udagamandalam. 2.Jayaseelan, S/o Kuppusamy, Vivekananda Nagar, Rose Mount, Udagamandalam, The Nilgiris. 3.Bellan S/o Nanjappa, 215, Parvathi Nilayam, Higgins Road, Bandhishola, Udagamandalam, The Nilgiris. + 1 cc to Mr. G. Kumud Jhabakh, Advocate SR No.75710 GR(CO) SR/27.10.2010 Crl.A.No.1462 of 2003 https://hcservices.ecourts.gov.in/hcservices/