K. Vanniaraj vs Usha Selvakumari

Mr. S. Nagamuthu, J.—The petitioner is the complainant in C.C.No.141 of 2012 on the file of the learned Judicial Magistrate, (Fast Track Court), (Magisterial Level), Tuticorin and the respondent is the accused in this case. The petitioner had filed the said case by way of a private complaint alleging that the respondent had committed an offence punishable under Section 138 of the Negotiable Instruments Act.

The learned Magistrate, by order dated 05.12.2014, dismissed the said private complaint under Section 204(4) of Code of Criminal Procedure. Challenging the same, the petitioner is before this Court with this criminal revision case.

I have heard the learned counsel on either side and I have also perused the records carefully.

The private complaint before the trial Court was pending from the month of July 2007. But the accused did not appear. Bailable warrant was issued by the lower Court and the same was pending execution. But the warrant was issued to the Inspector of Police, Naserath Police Station, Naserath, Tuticorin. But, he did not execute the warrant. The case was repeatedly adjourned with the endorsement as follows :

"Bailable warrant is pending against the accused. Call on ...."

Lastly, the matter was listed on 30.09.2014 and on that day, the following docket order was passed by the learned Judicial Magistrate. "Bailable warrant is pending against the accused. Call on 31.12.2014."

Thereafter, the learned Judicial Magistrate suo motu advanced the hearing of the case to 05.12.2014. But, no individual notice was issued to the complainant. On that day, the complainant was not present before the learned Judicial Magistrate. The learned Judicial Magistrate dismissed the complaint on the ground that process fee was not paid for issuance of process under Section 204(4) of Code of Criminal Procedure. Challenging the said order, the petitioner is before this Court with this petition.

The learned counsel for the petitioner would submit that there was no notice served on the complainant directing to appear before the Court, when the hearing was advanced from 31.12.2014 to 05.12.2014. The learned counsel further submitted that dismissal of the complaint under Section 204(4) of Code of Criminal Procedure is illegal, because already the petitioner had paid batta and only on that payment, the bailable warrant was issued by the Court and the same was pending with the Inspector of Police, Naserath Police Station. Thus, according to the learned counsel, the dismissal of the case is illegal.

The learned counsel for the respondent would submit that on coming to know that bailable warrant is pending against her, the respondent/accused paid a sum of Rs.50,000/- by way of demand draft to the complainant. But, the balance sum of Rs.50,000/- has not been paid.

I have heard the above submissions.

As rightly contended by the learned counsel for the petitioner, the dismissal of the complaint under Section 204(4) of Code of Criminal Procedure is not sustainable for more than one reason. The first reason is that process fee had been paid by the petitioner. That is the reason why bailable warrant was issued and the same is pending and for non-execution of the bailable warrant, the petitioner cannot be blamed. Secondly, the case was adjourned to 31.12.2014. For the Mega Lok Adalat, it was suo motu adjourned to 05.12.2014 by the learned Judicial Magistrate. But, no notice was issued by the learned Magistrate to the petitioner. But, in the impugned order, it is stated that notice was issued to the Bar Association. For better appreciation, the impugned order passed by the learned Judicial Magistrate, Tuticorin is extracted hereunder:

"Order-05.12.2014

In view of the Mega Lok Adalat, this case is suo motu taken as advance today. This case is pending for more than one year. There is no representation made on behalf of the Complainant regarding the process fee for the execution of the warrant. In this regard, this Court already issued a notice to the Bar Association, Tuticorin and a general notice is affixed by this Court in the notice board of this Court. In this case, there is no process fee is paid by the Complainant for the execution of the warrant against the accused, for which, this case is pending for more than one year without the process fee paid by the complainant. As the process fee has not paid by the Complainant even after the lapse of one year, this case is dismissed under Section 204(4) of Code of Criminal Procedure and the accused is discharged from the charges against him under Section 138 of Negotiable Instruments Act."

In my considered view, Mega Lok Adalat is not a forum to adjudicate the issue between the parties. If a party does not appear before the Lok Adalat, the Lok Adalat has not got any power under the Legal Services Act to dismiss the complaint. The learned Magistrate could not also proceed over the Mega Lok Adalat. The impugned order has been passed only in the discharge of judicial function as a Magistrate and not as a Presiding Officer of the Mega Lok Adalat. I do not understand as to how the Mega Lok Adalat has got power to do anything with the judicial function of the Magistrate. It is also not understandable as to how the notice sent to the Bar Association and the general notice affixed will amount to service of notice on the complainant, when the case is taken up suo motu.

It is also brought to my notice that the learned Judicial Magistrate has passed similar mechanical orders in 140 cases. If this allegation is true, I am of the view that what has been done by the learned Judicial Magistrate is highly illegal, which reflects the judicial impropriety of the Judicial Magistrate warranting action against him.

Above all, though there has been duty cast upon the Magistrates that docket orders are to be passed by them in each case, in this case, facsimile orders have been passed. Even the impugned order has also been by means of facsimile. This practise cannot be appreciated, as it reflects the total non-application of mind and further reflects that the Magistrate had been doing his judicial function in mechanical fashion.

In view of all the above, this criminal revision case is allowed, the impugned order is set aside and C.C.No.141 of 2012 is restored to the file of the learned Judicial Magistrate (Fast Track Court) (Magisterial Level), Tuticorin for disposal in accordance with law.

The Registry is directed to call for remarks from the learned Judicial Magistrate (Fast Track Court) (Magisterial Level), Tuticorin on the above shortcomings on the part of the Magistrate. The said explanation should reach this Court on or before 05.06.2015.

The Registry is directed to list this case on 08.06.2015.