1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:19.09.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.Apl.(MD) No.285 of 2011 I.Sahaya John William :Appellant -Vs- Rakkini Mary :Respondent Criminal appeal filed under Section 378 of the Criminal Procedure Code against the judgment passed in C.C.No.208 of 2010 on the file of the learned Principal District Munsif Cum Judicial Magistrate Court, Karaikudi, Sivagangai District, dated 12.08.2011. For Petitioner : Mr.K.Baalasundharam JUDGMENT This Criminal appeal filed under Section 378 of the Criminal Procedure Code against the judgment passed in C.C.No.208 of 2010 on the file of the learned Principal District Munsif Cum Judicial Magistrate Court, Karaikudi, Sivagangai District, dated 12.08.2011. 2.The petitioner is the complainant in C.C.No.208 of 2010 on the file of the Principal district cum Judicial Magistrate Court, Karaikudi, Sivagangai District. When the case was posted on on the date of hearing, i.e. 12.08.2009, he was absent and there was no representation on his behalf. Hence, the Court below dismissed the complaint. The dismissal order is as follows:- “This complainant filed complaint under Section 138 NI act against the accused. Today complainant absent. No representation. Accused present. Case called at 10.30 a.m. and then at 12 noon and at 1 p.m. Presence of complainant necessary for trial. Hence, the accused is acquitted under Section 256, code of criminal procedure code. 3.On the date, the accused was present. The learned Judicial Magistrate has recorded that the complainant absent and the presence of the complainant is necessary for trial. By saying so, he dismissed that petition. Hence, this petition. He should have adopted the procedure by sending a notice to the complainant, when he was not present before the Court below and it was not open for the learned Judicial Magistrate to dismiss the complaint under Section 256 Criminal Procedure Code. https://hcservices.ecourts.gov.in/hcservices/ 2 4.The learned counsel for the petitioner would cite a decision of mine reported in Shalimar Paints Vs. Muralidharan Hardware Mart, (2007) 2 MLJ (Crl) 1633, wherein I have observed that when the complaint was taken up for hearing, if the complainant is not present before this Court, it is incumbent upon the Presiding Officer to issue notice to the complainant and without issuance of such notice, adopting the procedure of dismissing the complaint under Section 256(1) Criminal Procedure Code is not proper. The view has been expressed in another decision of this Court reported in (2008) 1 MLJ (Crl) 248, D.S.Bedi V. P.Jayavelu. 5.In view of the above settled procedure, this Court is of the view that the Court below should have issued notice to the complainant when he was absent before the Court below. Hence, the order of dismissal has to be set aside and it is accordingly set aside. 6.In the result, this Criminal Revision Petition is allowed directing the learned Principal District Munsif Cum Judicial Magistrate Court, Karaikudi, Sivagangai District to restore the case on file and to proceed in accordance with law. The petitioner shall co-operate with the Court for completion of the trial at the earliest. Sd/- Assistant Registrar (AS) / TRUE COPY / Sub Assistant Registrar To: 1.The Principal District Munsif Cum Judicial Magistrate, Karaikudi, Sivagangai District. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Ssm RP/29.09.2011/2P/3C. Crl.Apl.(MD) No.285 of 2011 19.09.2011. https://hcservices.ecourts.gov.in/hcservices/