1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.06.2011 CORAM: THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.(MD).No.139 of 2011 C.Gurusamy : Appellant/Complainant Vs. K.Radha Krishnan : Respondent / Accused PRAYER: Appeal is filed under Section 378 of the Criminal Procedure Code, against the Judgment made in C.C.No. 954 of 2006 on the file of Judicial Magistrate No.3, Trichy, dated 5.6.2009, wherein the learned Judge dismissed the complaint for an offence under Section 138 of Negotiable Instruments Act. For Appellant : Mr. R.Sundar For Respondent : Mr.M.Suri J U D G E M E N T The appellant is the complainant in C.C.No. 954 of 2006 on the file of the learned Judicial Magistrate No.3, Trichirappalli and it has been filed to prosecute the respondent / accused for the alleged commission of offence under Section 138 of the Negotiable Instruments Act. 2. The Complaint was taken on file during 2006 and the accused was questioned on 29.12.2006 and thereafter on 23.11.2007, the complainant examined himself as PW-1 and marked Exhibit P-1 to P-24. For further evidence on the side of the complainant, the matter was directed to be called on 07.12.2007. Thereafter, number of times the case was called and when the case was called on 23.01.2009, the complainant was absent and there was no representation on his behalf and the accused was also absent and in order to condone his absence, an application under Section 317 of Cr.P.C., was filed and allowed. The case was directed to be called on 08.04.2009 for further evidence on the side of the complainant. 3. On 08.04.2009, both the complainant as well as the accused were absent and Petitions were filed and allowed and case was directed to be called on 05.06.2009 for letting further evidence on behalf of the complainant. 4. When the case was called on 05.06.2009, the complainant was called absent and there was no representation and the accused was present. There was no representation on behalf of the complainant, and no Petition under Section 256 of Cr.P.C., was filed to condone his absence. The Court examined the Clerk as CW-1 and dismissed the complaint and consequently acquitted the accused. Challenging the vires of the same, the present Revision has been filed. 5. The learned counsel appearing for the appellant/complainant would submit that PW-1/complainant was present on a quite number of https://hcservices.ecourts.gov.in/hcservices/ 2 occasions, but on behalf of the respondent/accused, no cross examination was done and the absence of the complainant on 05.06.2009 was neither willful nor wanton, but only due to circumstances which were beyond his control and hence, prays for setting aside the impugned order and for restoration of the complaint on file. 6. Per contra, the learned counsel appearing for the respondent/ accused would vehemently contend that the accused was always ready and willing to co-operate with the prosecution of the case and when the case was called on 23.01.2009, he was absent and there was no representation and inspite of it, the Trial Court was pleased to adjourn the matter on 08.04.2009 for evidence on behalf of the complainant and when the matter was called on 05.06.2009, again the complainant was absent and there was no representation. Taking into consideration the conduct of the complainant, the Trial Court is rightly dismissed the private complaint under Section 256 of Cr.P.C., and consequently acquitted the accused and no interference is warranted in exercise of its revisional jurisdiction. 7. The Court has carefully considered the rival submissions and also perused the materials available on record in the form of typed set of documents. 8. A perusal of the diary extract would disclose that on a number of occasions, the complainant as well as the accused were absent and the complainant is yet to be cross examined. Though the complainant was absent on 05.06.2009, no petition to condone his absence was filed. This Court taking into consideration the facts and circumstances, is of the view that one more opportunity is given to the complainant to prosecute his private complaint subject to putting him on terms. 9. In the result, this Appeal is allowed and the order dated 05.06.2009 made in C.C.No. 954 of 2006 is set aside subject to the condition that the appellant/complainant shall pay a sum of Rs.750/- to the learned counsel appearing for the respondent/accused on or before 17.06.2011. Call on 20.06.2011. sd/- Deputy Registrar (L.A) /True Copy/ Assistant Registrar To The Judicial Magistrate No.3, Trichy. + 1 cc to Mr.R.Sundar, Advocate, SR No.17830 + 1 cc to Mr.M.Suri, Advocate, SR No.17745 CRL.A.(MD).No.139 of 2011 09.06.2011 vsg RJ/16.6.11 2p/4c https://hcservices.ecourts.gov.in/hcservices/