Shalimar Paints Ltd. vs Muralidharan Hardware Mart

S. Palanivelu, J.—The appellant is the complainant before the learned VII Metropolitan Magistrate Court, George town, Chennai in C.C.

No. 7530 of 1998. He had lodged a private complaint on the strength of a dishonoured cheque against the respondent u/s 138 of Negotiable

Instruments Act.

The learned Metropolitan Magistrate dismissed the complaint, acquitting the accused u/s 256(1) Cr.P.C. for the non appearance of the

complainant. It is also stated in the order that on the previous hearings also, the complainant had not appeared before the Court and since the

matter had been pending from 1998, the same has been dismissed. Hence, the appellant is before this Court.

Learned Counsel for the appellant strenuously contended that merely because of the non appearance of the complainant before the Court

concerned at the time of hearing, the presiding Officer/Magistrate could not pass an order acquitting the accused after dismissal of the complaint.

According to the learned Counsel for the appellant, the learned Magistrate should have adopted a proper procedure in this matter and the non

observance of such procedure would tantamount to not rendering proper justice to the parties.

In support of his contention, he relied on the decision reported R. Sekar Vs. S. Rajendran, . In the said decision, this Court has followed the

principles formulated by the Apex Court in Associated Cement Co. Ltd. v. Keshavanand 1998 Cri. L.R. 856 wherein, the Apex Court has held as

follows:

Two constraints are imposed on the Court for exercising the power u/s 256. 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 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 date was quite unnecessary, then resorting to the step

of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially

and fairly without impairing the cause of administration of criminal justice.

The above said decision would throw much light on the subject. The proper course to be adopted by the learned Metropolitan Magistrate is that

when the complaint was taken up for hearing, if the complainant is not present before the Court, it is incumbent upon the Presiding Officer to issue

notice to the complainant and without issuance of such notice, adopting the procedure of dismissing the complaint u/s 256(1) Cr.P.C. is not at all

appreciable.

In view of the above said decisions, this Court is of the opinion that the learned Magistrate should have adjourned the case to some other date

to enable the complainant to be present before the Court and in the meanwhile, necessary notice should have been sent to the complainant. In

these circumstances, this Court finds that legal grounds are available for allowing this appeal.

Considering the circumstances of the case, this Court is of the view that there is no necessity to issue notice to the respondent since it is a

dispute between the Court and the appellant.

In fine, this appeal is allowed and the learned Metropolitan Magistrate is directed to follow the guidelines issued in the decisions cited supra.