Jayaseelan vs Bellan

T. Sudanthiram, J.—The Appellant herein is the complainant in C.C. No. 392 of 2002, on the file of the Judicial Magistrate,

Udagamandalam and the Respondent herein is the accused in the said case. The Appellant herein filed a private complaint u/s 138 of the

Negotiable Instruments Act against the Respondent herein. On 29.07.2003, as the complainant was not present before the Court, the learned

Magistrate acquitted the accused u/s 256 Code of Criminal Procedure Challenging the said acquittal, the complainant had preferred this criminal

appeal.

The learned Counsel appearing for the Appellant submitted that the complainant has been examined as P.W.1 on 28.04.2003 and he was also

present on several hearings. But the accused was absent for several hearings. Even non-bailable warrant was pending against the accused on

26.06.2003. The non-bailable warrant issued against the accused also was recalled on his surrender and he was questioned u/s 313 Code of

Criminal Procedure Thereafter, it was posted for examining the defence witnesses. The learned Counsel for the Appellant further submitted that on

24.07.2003, the complainant was absent since he had come to Madras for attending a ceremony and he was absent even on 28.07.2003. A

petition was filed for the absence of the complainant. But the learned Magistrate posted the case on the next day, i.e., on 29.07.2003, even on that

day, as the complainant was in Madras, he did not go to Udagamandalam for appearing before the court. Even on that day, an application was

filed u/s 256 Code of Criminal Procedure seeking condonation for the non-appearance of the complainant, but the learned Magistrate dismissed

the said petition and acquitted the accused.

The learned Counsel appearing for the Respondent submitted that on 24.07.2003, the application filed by the accused for recalling P.W.2 for

cross examination was allowed and the case was posted on 04.07.2003 and 11.07.2003 for cross examining the complainant, but the complainant

was absent. On 24.07.2003, 28.07.2003 and 29.07.2003 for three hearings the complainant did not appear and he could not be cross examined

by the accused. Only in the said circumstances, the learned Magistrate had rightly passed an order acquitting the accused u/s 256 Code of

Criminal Procedure

This Court considered the submissions of both parties and perused the records.

A certified copy of the docket order of the case is filed in the typed set. As per the docket entry, on 28.04.2003, the complainant was

examined as P.W.1 and the case was adjourned to 30.04.2003. But on 30.04.2003, the accused was absent and for the subsequent hearings

also, the accused was absent. 16.05.2003, non-bailable warrant was issued against the accused and it was recalled on 27.06.2003. The petition

filed by the accused to recall P.W.1 was also allowed on 04.10.2003 and the case was posted to 11.07.2003 for cross examination of P.W.1. On

11.07.2003, both the complainant and the accused had been present, but the case had been adjourned to 24.07.2003, but it is not known as to

why P.W.1 was not cross examined on that day. On 24.07.2003 and 28.07.2003, the complainant was absent and a petition was filed on behalf

of the complainant and it was also allowed. After allowing the petition filed for the absence of the complainant on 28.08.2003, the case has been

posted to 29.08.2003. Even on that day, the complainant was absent and therefore the learned Magistrate had passed an order u/s 256(3) Code

of Criminal Procedure The question now arises for consideration is whether the order passed by the learned Magistrate is legally sustainable. It

appears that from 13.12.2002, the complainant had been appearing before the Court for several hearings and he was also examined as P.W.1.

While so, the learned Magistrate need not have invoked the provision u/s 256(3) Code of Criminal Procedure Further as per the certified copy of

the order furnished to the Appellant, it is mentioned as follows:

The case was called on for hearing to-day to which it has been posted/adjourned. The complainant not being present either in person or by

pleader, the accused is acquitted u/s 256 Code of Criminal Procedure.

But as per the docket entry, it is different as follows:

Accused present. Complainant absent petition filed u/s 256 Code of Criminal Procedure and dismissed. Inspite of sufficient opportunities given,

complainant not complied the direction of this Court. This case is posted for cross examination of complainant. But for the reasons known to the

complainant, he is not appeared, it appears that the complainant is purposely not attending the court for obvious reasons. Hence this Court feels

that no more opportunity can be given, and the complaint is dismissed for non appearance of complainant and the accused acquitted u/s 256 Code

of Criminal Procedure

As per the order passed by the learned Magistrate, no petition u/s 256(3) Code of Criminal Procedure was filed, but as per the docket entry an

application u/s 256(3) has been filed by the complainant. Two different particulars in the order are available on record.

This Court is unable to understand how the learned Magistrate could pass order with two different particulars. In this case, it cannot be said that

the complainant played some delaying tactics. As the complainant was regular in attending the court on earlier occasions, in the interest of justice,

this Court feels that the complainant must be given a chance to establish his case.

For the above said reasons, the criminal appeal is allowed. The order passed by the learned Magistrate dated 29.07.2003 acquitting the

accused u/s 256(3) Code of Criminal Procedure is set aside. The learned Magistrate is directed to proceed with the case as per law. Both the

complainant and the accused are directed to appear before the trial Court on 10.11.2010.