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TMI Blog2018 (9) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... s directed to dispose of the complaint on merits and in accordance with law - matter on remand. - Criminal Appeal No.772 of 2011 - - - Dated:- 29-8-2018 - Mr. P. Velmurugan J. For the Appellant : Mr.N.Manokaran For the Respondent : No Appearance JUDGMENT This Criminal Appeal has been preferred against the order dated 01.02.2010, passed by the learned Judicial Magistrate No.II, Coimbatore, in C.C.No.402 of 2006. 2.The brief facts of the case are as follows: The appellant M/s.National Handloom Development Corporation is registered under the Companies Act 1956 represented by its Deputy Manager. The appellant Corporation is doing business of selling dyes and chemicals required for clothing materials. The respondent had purchased the dyes and chemicals from the appellant Corporation and thereby issued a post-dated cheque for an amount of ₹ 1,24,462/- bearing cheque No.052153 dated 30.03.2005 drawn at Bank of India, Porur Branch and instructed the respondent to present the cheque on 31.05.2005. When the respondent presented the cheque for clearance at Indian Overseas Bank, Ramnagar Branch, Coimbatore on 31.05.2005, the cheque was returned with an endor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduce any evidence, the defence side evidence was also closed and the matter was posted for judgment on 20.01.2010. When the matter was posted for judgment on 20.01.2010, the respondent filed an application to re-open the evidence and that was not intimated to the appellant. When enquired about the same, the Registry intimated that the bundle was misplaced and therefore, they have not posted the matter for some time and all of a sudden posted the matter on 27.01.2010. Since the appellant does not know about the re-open petition, he did not appear before the Trial Court and therefore, the learned Magistrate dismissed the case for default and acquitted the respondent. 7.The learned counsel for the appellant submitted that the presence of the appellant either on 20.01.2010 or 27.01.2010 is not necessary, because the case was posted on 20.01.2010 for judgment. Since the respondent filed an application to re-open the case and also for examining the defendant's side witness, the case was adjourned to 27.01.2010. So, either on 20.01.2010 or 27.01.2010, the presence of the appellant is not necessary. The learned Judicial Magistrate No.II, Coimbatore, failed to consider the presence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents. Hence, the case was posted for judgment on 20.01.2010. Therefore, the respondent filed an application to re-open the case and also to examine the defence side evidence. After receiving the application, the matter was adjourned to 27.01.2010. On that day, the appellant did not present before the Court. Hence, the case was dismissed for default. 11.The main contention of the appellant is that after closing the defence side evidence, the matter was not posted for sometime. When enquired in the Registry, it was informed that the bundle was misplaced and hence it could not be posted. But, it was suddenly posted on 27.01.2010 and dismissed for default on the ground that the appellant was absent on that day and acquitted the respondent under Section 256 of Cr.P.C. 12.Admittedly, on behalf of the appellant, the Deputy Manager appeared before the Magistrate and marked necessary documents and the appellant's side evidence was closed on 18.08.2007 and posted for defence side evidence. Since, no witness was examined or documents marked on behalf of the respondents, defence side evidence was also closed and adjourned to 20.01.2010 for judgment. Section 256 Cr.P.C deals wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. 15.Further, in the case of S.Anand Vs.Vasumathi Chandrasekar reported in 2008(4) Supreme Court cases 67, the Apex Court has held as follows: 12.Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined. 13.The date was fixed for examining the defence witnesses. The appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence. 16.In this case also, after completing the appellant side evidence, evidence under section 313 Cr.P.C., was completed. After completion of 313 Cr.PC proceedings, the matter was posted for defence side evidence. Since no witness was examined, the defence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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