T.V. Vasudevan vs T. Govindaswami Naicker and Others

Singaravelu, J.—This is an appeal filed by the complainant in C.C. No. 1481 of 1978 en the file of the Judicial Second Class Magistrate Chingleput, against the order of acquittal passed by the court under S. 216, Crl.P.C.

The facts leading to this case are as follows: The complainant herein filed a private complaint against the respondent for alleged offences under Ss. 147 . 447, 427, and 341, read with S. 145, I.P.C. and it was pending from 12th April, 1978. The prosecution closed its side by examining 9 witnesses and on 19th May, 1979, the case was posted for defence witnesses. On that date the complainant was absent. The matter was passed over and it would appear that it was again called after lunch. Even then, the complainant and his counsel were absent. Therefore, the learned Magistrate acquitted the accused under S. 258(1), Crl.P.C. The complainant is aggrieved by this order of acquittal and has filed this appeal. It is argued on behalf of the appellant-complainant that the case went on for a large number of hearings and on all those occasions the complainant and his counsel were duly present. The prosecution itself was closed on 22nd January, 1978 and the accused were examined on 24th January, 1979 and the case was posted to 13th February, 1979 for the defence witnesses. It is stated that D.Ws. were not produced. Therefore, the case was posted to 8th April, 1979 for arguments and then to 5th April, 19 79 on account of the leave of absence of the Magistrate. On the next bearing date also, the Magistrate was on leave and it was posted to 19th May, 1979 for arguments. It was on that date that the complainant was absent and the accused were acquitted. Placing reliance on these facts, it was strenuously argued on behalf of the appellant that in the circumstances the acquittal under S. 258(1) Crl.P.C, is not at all proper especially when the case has reached the stage of defence and was posted for arguments. Having perused the B diary of the lower court, which discloses that the complainant was present almost on all the previous hearings 46 in number, covering about 13 months, it is not permissible for the learned Magistrate to invoke S. 236(1), Crl.P.C. and acquit the accused. The prosecution has let in evidence on its side and the learned Magistrate could have disposed of the case on the merits on the evidence on record. The complainant was prosecuting the case on all the hearings and he was not delinquent. Further, it is noticed that the complainant was represented by a pleader and the pleader was absent. Therefore, the complainant''s absence was even immaterial and cannot be a ground for acting under S. 258(1) Cr.P.C. The court should have, in all fairness, pronounced order on merits especially when no D.Ws. have been examined though they have taken time from the month of January to May, 1979.

Learned counsel for the respondents drew my attention to a ruling reported in Natesa Naicker Vs. Mari Gramani and Another, wherein it is stated that when in a summons case the complainant did not appear, it was imperative on the part of the Magistrate to acquit he accused unless there is a proper reason for adjourning the hearing of the case. This condition does not apply to the facts of this case, which is clearly distinguishable. In the above stated case, the case was posted first and heard on 6th December, 1948. After the examination of the complainant, it was adjourned to 16th December, 1948 for further evidence. On that day when the case was called, the complainant was not present and consequently the Magistrate acquitted the accused. But in our case on hand, it went on for 46 hearings and the case was virtually posted for arguments and disposal. Therefore, it is just and proper that the order of acquittal should be set aside and the case should be disposed of on merits. Accordingly, the appeal is allowed and the order of acquittal is set aside and the learned Magistrate will restore the case to his file and dispose of the same on merits expeditiously.