1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.06.2011 CORAM: THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.(MD).No.90 of 2011 Rajagopal : Petitioner/De-facto Complainant Vs. State through 1. The Inspector of Police Thogamalai Police Station Thongamalai, Karur District : Respondent/Complainant 2. Rajendran 3. Devendran 4. Kamalam : Respondent / Accused PRAYER: Appeal is filed under Section 378 of the Criminal Procedure Code, against the Judgment of the acquittal of respondents by learned Judicial Magistrate No.I, Kulithalai, in C.C.No. 236 of 2007 dated 01.11.2010. For Appellant : Mr. M.Subash Babu For 1st Respondent : Mr.P.Kandasamy, Government Advocate (Crl. Side) J U D G E M E N T By consent, the Appeal itself is taken up for final disposal. 2. The appellant is the complainant in C.C.No. 236 of 2007 on the file of the Court of learned Judicial Magistrate No.I, Kulithalai and he has filed the above said private complaint seeking to prosecute the respondents 2 to 4, for the alleged commission of the offences under Sections 341, 323 and 506(ii) of IPC and the offences said to have been committed at about 8 hours, on 04.12.2003 and the private complaint came to be filed during 2007. 3. When the private complaint was called on 01.11.2010, on behalf of the appellant/complainant, a petition under Section 256 of Cr.P.C., was filed to condone his absence. The Court of learned Judicial Magistrate No.I, Kulithalai, has dismissed the said Petition and also the complaint and consequently acquitted the accused Nos. 1 to 3. Challenging the vires of the said order, the present appeal has been filed. 4. The learned counsel appearing for the appellant would submit that in order to condone his absence, a Petition under Section 256 of Cr.P.C., was filed and it was dismissed without assigning any tenable reasons which ultimately ended in the dismissal of the complaint and consequently ended in the acquittal of the accused, and therefore, the impugned order on the face of it, is unsustainable. 5. Per contra the learned counsel appearing for the respondents 2 to 4 would submit that the alleged occurrence took place on 04.12.2003 and the private complaint came to be lodged belatedly only during 2007 and from https://hcservices.ecourts.gov.in/hcservices/ 2 2007 onwards, the appellant/complainant has not chosen to prosecute the complaint and thereby dragging on the proceedings which has resulted in undue harassment and mental agony to the accused and taking into consideration of the aspect, the Trial Court has rightly dismissed the private complaint and no interference is warranted. 6. This Court taking into consideration the rival submissions and also perused the typed set of papers. 7. The fact remains that in order to condone his absence, the appellant/complainant has filed a Petition under Section 256 of Cr.P.C., and it was dismissed and consequently, the private complaint itself was dismissed and the accused were acquitted. Since the appellant has filed the Petition under Section 256 of Cr.P.C., to condone his absence, the Trial Court could have given him one more opportunity to prosecute his private complaint, but instead it has dismissed the said Petition as well as the complaint. 8. This Court taking into consideration the facts and circumstances of the case, is of the view that one more opportunity is given to the appellant/complainant to pursue his complaint subject to putting him on terms. 9. In the result, this Petition is allowed and the order, dated 01.11.2010 made in C.C.No. 236 of 2007 on the file of the learned Judicial Magistrate No.I, Kulithalai is set aside subject to the condition that the appellant/complainant shall deposit a sum of Rs.750/- to the local legal services authority on or before 22.06.2011 and on compliance of the above said order, the private complaint stands restored to the file, otherwise the order passed by the Trial Court is confirmed. 10. In the event of the private complaint was restored on file, the Trial Court is directed to give preference for its early disposal since the Calendar Case is of the year 2007. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR vsg To 1.The Judicial Magistrate No.I, Kulithalai 2.The Inspector of Police Thogamalai Police Station, Thongamalai, Karur District 3.The Secretary, Local Legal Services Authority, Madurai Bench of Madras High Court, Madurai. 1CC TO MR. V. ILLANCHEZIAN, ADVOCATE, SR: 17901: 1CC TO MR. M SUBASH BABU, ADVOCATE, SR: 17961: DM:2011:JUNE:15: CRL.A.(MD).No.90 of 2011 09.06.2011 2P:6C:; https://hcservices.ecourts.gov.in/hcservices/