2010 (7) TMI 1212 - HC - Indian Laws

Summary

Issues involved:
The issue involves the dismissal of a private complaint under Section 138 of the Negotiable Instruments Act by the learned Magistrate due to the absence of the complainant during the recording of the sworn statement.

Summary:

Issue 1: Dismissal of complaint without recording sworn statement
The revision petitioner filed a private complaint under Section 138 of the Negotiable Instruments Act. The complainant was absent during the recording of the sworn statement, leading to the dismissal of the complaint by the learned Magistrate. The petitioner contended that the complainant was ill on the scheduled dates and did not file any application before the Magistrate. The petitioner argued that the Magistrate should not dismiss the complaint without recording the sworn statement and could have sent a notice to the complainant before dismissal.

Judgment:
The Court noted that under Section 190(1)(a) of the Cr.P.C., the Magistrate must receive the complaint and then examine the complainant and witnesses under Section 200 for recording the sworn statement. The Magistrate may take cognizance of the offense or dismiss the complaint under Section 203 after considering the oath of the complainant and witnesses. While there is no specific provision for dismissing the complaint due to the absence of the complainant before recording the sworn statement, the Court held that the Magistrate can close the complaint if the complainant is absent on scheduled dates. This closure does not amount to acquittal of the accused. Considering the interests of justice and the complainant's illness, the Court set aside the order of dismissal and directed the complainant to appear before the Magistrate within four weeks.

Conclusion:
The High Court of Madras allowed the criminal revision petition, setting aside the dismissal of the complaint under Section 138 of the Negotiable Instruments Act due to the complainant's absence during the recording of the sworn statement. The Court emphasized the importance of giving the complainant a chance to present their case and directed the complainant to appear before the Magistrate within a specified period.