1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:03.08.2011 Coram: THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal(MD)No.219 of 2011 Rajkumar :Appellant -Vs- Aruldoss :Respondent Criminal Appeal filed under Sections 378(4) of Cr.P.C. to set aside the judgment and acquittal order passed by the learned Judicial Magistrate, Pattukkottai, dated 15.07.2011 in C.C.No.176 of 2010 and restore the case on its file. For Appellant : M/s.S.Deenadhayalan JUDGMENT This criminal appeal has been filed to set aside the judgement dated 15.07.2011 passed in C.C.No.176 of 2010, on the file of the Judicial Magistrate, Pattukkottai. 2.Heard the learned counsel for the petitioner. 3.The petitioner is the complainant in C.C.No.176 of 2010, on the file of the learned Judicial Magistrate, Pattukottai. He preferred the private complaint on the strength of a cheque delivered by the respondent. On the date of hearing i.e., on 15.07.2011, on account of the absence of the petitioner and of no representation on his behalf, the Court below dismissed the complaint under Section 256(1) Cr.P.C. acquitting the accused. The following is the impugned order: "Complaint filed by the complainant under Section 138 N.I.Act. 2.Complainant and accused absent. No representation on both sides. In spite of specific direction last hearing for appearance of the complainant in Court, complainant is absent. Complainant has been absent in court in most of the hearings and appears not interested in prosecuting the case. Hence complaint dismissed under Section 256(1) Cr.P.C. Accused acquitted accordingly." 4.If the complainant were not present before the Court, the Court has to issue notice to him to appear on a particular date and the Court has also to see whether the presence of the complainant is necessary on a particular date of hearing for the progress of the case. The above said two features have not been observed by the Court below. The order challenged does not show whether the presence of the complainant was required for the progress of the case on the particular date of hearing. https://hcservices.ecourts.gov.in/hcservices/ 2 5.Mr.S.Deenadhayalan, the learned counsel for the petitioner cited two decisions of this Court in which one is mine reported in (2007) 2 MLJ (Crl) 1633, (Shalimar Paints Ltd. v. Muralidharan Hardware Mart, Chennai) and another decision reported in (2007) 2 MLJ (Crl) 1377, (Balakrishnan v. Sasikumar). 6.In view of the lapses on the part of the Court below, the impugned order is liable to be set aside and it is accordingly set aside. The Criminal Appeal deserves to be allowed. 7.In fine, the Criminal Appeal is allowed directing the learned Judicial Magistrate, Pattukkottai, to restore the case to file and proceed with the same in accordance with law. Sd/- Assistant Registrar (P&A) / TRUE COPY / Sub Assistant Registrar To: The Judicial Magistrate, Pattukkottai. Srm RP/23.08.2011/2P/2C. Criminal Appeal (MD) No.219 of 2011 03.08.2011. https://hcservices.ecourts.gov.in/hcservices/