M/s. Cheran and Company vs P.K. Chandra Bose, Proprietor, Kannan Studio, Coonoor, Nilgiris

Rengasamy, J.—This Revision arises from the order of the Learned Judicial Magistrate, Mettupalayam in S.T.C No. 462 of 1991 dated 23.8.1991. The Revision Petitioner filed a private complaint against the respondent u/s 200 for the offences committed under Sections 138 and 142 of the Negotiable Instruments Act alleging that the cheques issued by the respondent were bounced. The case stood posted on 23.8.1991 for enquiry and as the complainant - Revision Petitioner and his counsel were absent, the complaint was dismissed u/s 256 Criminal Procedure Code discharging the accused: Aggrieved of this order of the learned Judicial Magistrate, the complainant has come forward with this Revision. In the Revision petition it is stated that originally he engaged Mrs. Sulochana an Advocate of Mettupalayam on his behalf to proceed with this case, but as she was elected as M.L.A., she entrusted the papers with one Mr. N. Balasubramanian an Advocate of Coimbatore, that two days before the date of hearing i.e. on 21.8.1991 he had to leave Mettupalayam on certain work and informed his Advocate Mr. Balasubramanian at Coimbatore to file a petition on 23.8.1991 to condone his absence and therefore he did not come to attend the court on 23.8.1991 as already instruction had been given to represent him, but on 23.8.1991 his Advocate from Coimbatore could not reach the court in time as his vehicle broke down on the way to Mettupalayam, but the learned Judicial Magistrate having found that the complainant and his counsel were absent, dismissed the complaint discharging the accused and this order has to be set aside in view of the reasons for his non-appearance which was beyond his control.

The learned Counsel appearing for the respondent would contend that u/s 256(1) of Criminal Procedure Code when the complainant was absent it was left to the discretion of the Magistrate either to dismiss the complaint or to adjourn and in this case as the learned Judicial Magistrate did not use his discretion, to adjourn the case, but dismissed it; it is a legal order which cannot be interfered with by this court and therefore this Revision has to be dismissed.

The learned counsel for the respondent has referred to certain decisions to support the contention and the decisions are Subramani v. Sarangapani (1991 LWC 65);

Narasimha Murthi v. K.S.Rangachari (1986 LWC 289); Sowbagyam v. Kalia Murthi (1970 LWC 87 ) and Nagarambilli Tonkya Vs. Matta Jagannatha and Others, . All these decisions cited by the learned counsel for the respondent refer to the discretional right of the Magistrate to dismiss the complaint in the absence of the complainant and the High Court has taken a view in these matters that when the discretion was used by the Magistrate rightly, there is no illegality in the order calling for the interference by the High Court. So on the basis of these decisions it is argued before me that as the learned Judicial Magistrate of Mettupalayam has rightly used his discretion dismissing the complaint for the absence of the complainant and his counsel, this court cannot interfere in that order. But it cannot be taken that once a complaint was dismissed u/s 256(1) of Criminal Procedure Code it has become final and cannot be challenged in the Revision. Now the reason is being offered by the Revision petitioner for the absence of himself and his counsel. If these reasons had been brought to the notice of the Magistrate probably he might have agreed to adjourn the case, but when the order was passed there was none to represent the complainant giving the reasons for the absence of the party and the counsel. In S.Marichamy Pillai v. Meenakshi Sundaram Pillai (1970 I M.L.J. 406) this Court has found that the court can interfere with the orders passed by the Magistrate u/s 256(1) of the Criminal Procedure Code provided there is justification for it. In Vellaiyan v. Periyannan (1983 LWC 164) also Rathnavel Pandian, J (as he then was) has observed that the Magistrate is vested with the powers to acquit the accused invoking the provision of Section 256 of Criminal Procedure Code to discharge the accused where the complainant was absent and ordinarily the High Court will not interfere with such kind of orders if the circumstances do not warrant or the expediency of the Justice does not require interference, but if the circumstances warrant the interference of the High Court it has to be done according to the facts of the case. Therefore it cannot be taken that once a dismissal order is passed u/s 256(1) of Criminal procedure Code then it is binding upon the complainant and he has no other remedy there upon. This is a case in which the respondent had given cheque to the Revision Petitioner and as the same was bounced, he had filed this complaint and reasons also are offered by the Revision petitioner for the absence of himself and also his counsel. According to him as he had been away from Mettupalayam he informed his counsel who was in Coimbatore to file an application to condone his absence for the hearing on 23.8.1991 and as the vehicle broke down on the way the counsel could not reach the court in time before the order was passed. Therefore, when acceptable reasons have been given now, for the absence of the counsel and the complainant and the same also has not been disputed seriously I feel that the court cannot refuse to interfere with the order of the lower Court on the ground that the learned Magistrate has used his discretion property. Therefore, this is a fit case in which this court has to interfere to set aside the order of the Lower Court.

In the result, the order of the leaned Judicial Magistrate is set aside and the matter is remitted back to the file of the learned Judicial Magistrate, Mettupalayam for disposal of this case accordingly to law. The revision is allowed.