IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2008 CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Criminal Appeal No.845 of 2006 C.Rajasekar ... Appellant/Complainant vs S.Sasikumar ... Respondent/Accused Prayer:- Criminal Appeal filed against the order of acquittal passed in C.C.No.657 of 2005 on the file of the learned Judicial Magistrate, Tiruchengode, dated 09.08.2006. For Appellant : Mr.N.Manokaran For Respondent : No appearance (proof of service filed). J U D G M E N T The appellant herein is the complainant in C.C.No.657 of 2005 on the file of the learned Judicial Magistrate, Thiruchengode. He had preferred this appeal against the order passed by the learned Magistrate acquitting the accused under Section 257 of the Code of Criminal Procedure for the reason that the complainant was absent on that date. The accused was charged for an offence under Section 138 of the Negotiable Instruments Act. 2. After the appeal being admitted, notice was ordered to the respondent/accused. But, as the notice from Court could not be served to the accused, private notice was permitted to be taken by the appellant. The learned counsel for the appellant, Mr.N.Manokaran, sent a notice on 28.06.2007. A proof affidavit along with the postal acknowledgement, which is acknowledged by the accused himself, has been filed. 3. The respondent neither appeared in person nor through his counsel. 4. The learned counsel for the appellant submitted that though the complainant was regularly appearing before the trial Court, on the date of hearing, i.e., on 09.08.2006, he did not appear, since the complainant had mistakenly noted the date on the earlier hearing and he was under the impression that the case https://hcservices.ecourts.gov.in/hcservices/ was posted to 30.08.2006. When he went to the Court on 30.08.2006, his case was not called and subsequently, on verification, he came to know that his case was already dismissed for default on 09.08.2006 itself. 5. The learned counsel for the appellant pointed out that though on the earlier two occasions, when the case was posted for trial, he had appeared before the learned Magistrate, he was not examined as a witness. There is no progress in the case. The learned counsel for the appellant also relied on the decision of the Hon'ble Supreme Court in Associated Cement Co. Ltd. -vs- Keshvanand (1998) 1 Supreme Court Cases 687, wherein it was held as follows:- "What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum." 6. This Court considered the submission made by the learned counsel for the appellant and perused the records. The order of the learned Magistrate is as follows:- "Complainant absent. No representation. Accused present. Court Witness.1 examined. Hence complaint is dismissed and the accused is acquitted u/s. 256 Criminal Procedure Code." 7. According to the evidence of C.W.1, who is the Office Assistant of the Court, he called the name of the complainant thrice and he did not appear. The Diary Extract in the case is as follows:- "27.1.06 – Complainant and accused present. Questioned. Pleaded not guilty u/s. 138 of the N.I. Act. Posted for trial. Call on 06.04.2006. https://hcservices.ecourts.gov.in/hcservices/ 6.4.06 – Complainant and accused present. For trial by 9.6.06. 9.6.06 – Complainant and accused present. For trial by 9.8.06. 9.8.06 – Complainant absent. No representation. Accused present. CW1 examined. Hence complaint is dismissed and accused is acquitted u/s.256 Cr.P.C." 8. It appears from the records that after summons was issued to the accused, he appeared before the learned Magistrate on 23.01.2006 and his plea was recorded on 27.01.2006. Then the case was posted for trial on 06.04.2006. Though the case was posted on 06.04.2006 and both the complainant and the accused were present, the case was adjourned to 09.06.2006. Neither of the party filed any application for adjournment and no reason is given by the learned Magistrate for adjourning the case on that day. Again on 09.06.2006, both the complainant and the accused were present and the case had been adjourned to 09.08.2006. Again neither of the party sought for any adjournment and no reason is given by the learned Magistrate. Under the said circumstances, on 09.08.2006, the complainant had been absent and the accused was present and the complaint had been dismissed in the absence of the complainant. The learned Magistrate failed to take into consideration about the presence of the complainant on the earlier dates, when the case was posted for trial. The learned Magistrate also not taken steps to issue notice to the complainant for his absence on that day. Of course, Section 256 of the Code of Criminal Procedure provides for disposal of the complaint in default, but at the same time, the question arises for consideration is, as to whether the Magistrate should have resorted to invoke the provision in the facts and circumstances of the case. As the complainant had already been present on the two earlier occasions when the case was posted for trial, it cannot be said that the complainant played some dilatory tactics. Therefore, the learned Magistrate need not have resorted to the axing process, since the complainant had been regular in attending the Court on the earlier dates, though there was no progress in the case on the earlier two occasions. In the interest of justice, this Court feels that the complainant must be given a chance to prove his case. https://hcservices.ecourts.gov.in/hcservices/ 9. For the above said reasons, the appeal is allowed. The learned Magistrate is directed to issue fresh summons to the accused and proceed with the trial. Bs/ Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Judicial Magistrate, Tiruchengodu. 2. Do Thro The Chief Judicial Magistrate, Namakkal. + 1 cc to Mr. N. Manokaran, Advocate SR No. 36456 Crl.A.No.845 of 2006 JSV(CO) SR/16.7.2008 https://hcservices.ecourts.gov.in/hcservices/