9911796707
TMI Blog2022 (6) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused as demanded by them and had raised invoices for the same. iii) To discharge the liability, the accused had issued various cheques from 8.2.2020 to 16.2.2020 which were dishonoured when presented for payment with the endorsement "Funds Insufficient" and thereby, a sum of Rs. 33,37,657/- was due to be paid by accused. iv) The complainant had issued a notice to the accused on 18.5.2020 calling upon them to settle the amounts and thereupon, they had paid a sum of Rs. 15,00,000/- and thereafter, they failed to settle the remaining amount due to the complainant. v) The accused, knowing well that they have no sufficient funds in their account, had issued the cheques and they have not come forward to settle the dues fully, even after receipt of statutory notice and thereby, they have committed an offence punishable under Section 138 of the Negotiable Instruments Act and hence, the petitioner had filed the private complaint before the Judicial Magistrate, Avinashi on 16.7.2020. vi) The complaint was returned for certain compliances on 17.7.2020 and after compliances, it was re-presented on 24.7.2020 Again, the complaint was returned on 28.7.2020 and it re-presented on 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint. In support of his contention, he would rely upon the following decisions:- i) S. Sankar v. C.V. Pasupathi (2001 Cri. LJ 2144) ii) K. Meenakshi vs. S. Mohana (2008 Cri. LJ 1781) iii) O.C. Periyasamy vs. D. Venkatesan @ Ravi (CDJ 2010 MHC 4389) 5. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 6. The present complaint is by a private party for the offence punishable under Section 138 of the Negotiable Instruments Act. The complainant is not a public servant. Therefore, presence of the complainant and his/her examination on oath is absolutely necessary before taking the complaint on file. Since the complainant was absent on 12.11.2021, he was called absent and the court finding that the complainant is not interested to proceed with the case further, had dismissed the complaint under Section 256 Cr.P.C. 7. The dismissal of the complaint can be made only after the same is taken on file. In the instant case, it appears that the learned Magistrate, even before issuing process to the accused, had dismissed the complaint for default viz., for the absence of the complaint. It is useful to refer to the provision under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court on occasions when his presence is necessary. The section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum. 14. Reading the section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second, is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with this attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate shall acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. The object of the provision is that Courts should take serious note of absence of the person, who approaches the Court to set the law in motion, when the accused person makes himself present before Court for enquiry. 10. On 24.04.2003, at the time when the Complaint was taken on file, the accused/Petitioner did not have any role to play. Only after summons are issued, the role of the accused commences, as she is aggrieved by the orders of the learned Magistrate. The Order dated 10.04.2003 cannot be ascribed to be a judicial order, but could be construed only as an Office Note made on the Complaint for certain compliance. Unless all the requirements stipulated under Section 200, Cr.P.C. are complied with, the learned Magistrate cannot proceed further on the basis of the Complaint made. In the absence of dismissal of a Complaint on merits, there is no bar for filing even a second Complaint on the same set of facts and allegations. 11. Under such circumstances, I am of the considered view that no prejudice has been caused to the accused/Petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time, this Court considers the submissions made by the learned counsel for the Petitioner that the representative of the Complainant could not Appear before the Court due to illness." 13. In this case, as stated above, the learned Magistrate had invoked section 256 Cr.P.C. even before the complaint was taken on file and even before the accused had entered appearance. Further, the complaint has been dismissed during the covid pandemic period and that there is nothing on record to show that the court had issued notice to the complaint for his appearance before taking the drastic step of dismissing the complaint. 14. As stated above, the complaint has been axed even before it was numbered and taking on file. In the opinion of this court, the Trial Court has not exercised its discretion judicially and fairly the order passed misconstruing the scope of Section 256 is illegal and the impugned order is liable to be set aside and accordingly, it is set aside. This court is also of the view that normally, when an order is passed under Section 256 Cr.P.C., only an Appeal will lie. Now, that, an illegal order has been passed even prior to taking of cognizance, the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
