S. Ravichandran vs V. Pandiyan

V. Kanagaraj, J.—The above Criminal Appeal is directed against the judgment dated 28.08.2002 made in C.C. No. 70 of 2002 by the

Court of Judicial Magistrate, Thiruvarur, thereby acquitting the respondent u/s 256 of Cr.P.C. on account of the appellant having not taken proper

steps in the private complaint initiated by him u/s 138 of the Negotiable Instruments Act.

Heard the learned counsel for both and perused the records.

It is simply on ground that on the part of the complainant, he has not come forward to prosecute the complaint registered on the file of the lower

Court for an offence punishable u/s 138 of the Negotiable Instruments Act, said to have been committed on the part of the respondent, which has

been filed before the lower Court on 14-03-2002 by the complainant on a dishonoured cheque for a sum of Rs.1,30,000/-, which was returned

unpaid on 8-10-2001, on ground that the respondent did not have sufficient funds in his accounts, so as to honour the cheque and hence, issuing

the lawyer''s notice dated 12-10-2001, demanding the cheque amount to be paid within 15 days from the date of receipt of the same and on

failure to comply with, the appellant has come forward to file the private complaint before the Trial Court, as per the provisions of Section 138 of

the negotiable Instruments Act in time seeking redressal.

The lower Court has simply passed a one sentence order that, since for a long time the complainant did not come forward to prosecute the

complaint acquitting the respondent, dismissed the said complaint, without assigning any other valid or tangible reason and hence, the appellant has

come forward to prefer the above Criminal Appeal on certain grounds as pleaded in the grounds of the memorandum of the Appeal.

The only point for consideration in the above circumstances is, ""whether the lower Court has complied with the legal requirements as warranted

by the Section and the proposition of law as propounded by the Honourable Apex Court in its judgment rendered in Associated Cement Co. Ltd.

Vs. Keshvanand, "", wherein, in paragraph 18, it is held:

..... 18. 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 his

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 presence of the complainant on that day was quite unnecessary then resorting to the step of axing

down the complaint may not be a proper exercise 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.......

If the parameters of the above dictum of law as held by the Honourable Apex Court is applied to the order passed by the trial Court, needless

to mention that the order passed by the Court of Judicial Magistrate, Thiruvarur, dated 28-08-2002 is ex facie illegal and not sustainable in law.

The trial Court is cautioned against passing such orders hereafter and shall take sufficient care and caution prior to passing such slipshod orders,

without any ground for passing such order under the provision of which the same has been passed or without assigning valid or tangible reasons in

support of the order passed. Such attitude adopted on the part of the lower Court only gives way for this Court to cause interference into the same

and hence, the following order.

In result,

i. the above Criminal Appeal succeeds and the same is allowed;

ii. consequently, Crl. O.P. No. 26501 of 2002 is closed;

iii. the judgment dated 28-08-2002 rendered in C.C No. 70 of 2002 by the Court of Judicial Magistrate, Tiruvarur, is set aside;

iv. the case is remanded to the trial Court for continuation of the trial procedure on the complaint of the appellant in accordance with the

procedures established by law, so as to deliver a judgment on merit and in accordance with law at the earliest.