V. Kuppusamy vs K.S. Nallathambi

T. Sudanthiram, J.—The appellant herein filed a private complaint against the respondent for an offence u/s 138 of Negotiable Instruments

Act 1881. The learned Judicial Magistrate, Fast Track No. 1, Erode, passed an order, dated 19.07.2012 dismissing the complaint u/s 256 of

Cr.P.C., for the reason that the complainant was not present and accordingly acquitted the accused. Challenging the said order of acquittal, the

Complainant had preferred this Criminal Appeal before this Court. Though notice has been served on the respondent, the respondent has not

appeared before this Court and there is no representation on behalf of the respondent.

Learned counsel appearing for the complainant would submit that the complainant is aged about 72 years and on the date of dismissal i.e.,

19.07.2012, he went to the Court and due to breathing problem, he fell down and he was taken to hospital by his counsel himself. Learned

counsel for the complainant further submitted that in this case, the complainant was already examined and the evidence on his side was closed and

the accused was questioned u/s 313 of Cr.P.C. Thereafter, an application was filed by the accused u/s 311 of Cr.P.C., for cross examination of

the complainant and that was also done. Once again, a petition was filed to cross examine further the complainant.

This Court considered the submissions and perused the materials available on records and also perused the order passed by the learned Judicial

Magistrate, Fast Track No. 1, Erode.

It is mentioned in the order that it was reported to the learned Magistrate that the complainant was out side the Court due to tiredness and

hence, he was unable to appear inside the Court and the learned counsel for the complainant also requested the Court to pass over the case.

Subsequently, the case was called, but the complainant did not appear. According to the complainant, he was taken to the hospital.

Furthermore, in this case, the evidence on the side of the complainant was almost over and the accused was also questioned u/s 313 Cr.P.C. in

the said circumstances, this Court is of the view that the trial against the accused should be proceeded. Hence, the Criminal Appeal is allowed and

the order, dated 19.7.2012, made in C.C. No. 21 of 2012 passed by the learned Judicial Magistrate, Fast Track No. 1, Erode, is set aside. The

learned Judicial Magistrate, Fast Track No. 1, Erode, is directed to proceed according to law. The appellant/complainant is directed to appear

before the trial Court on 12.08.2013. The learned Judicial Magistrate, Fast Track No. 1, Erode, may also send notice to the accused for his

appearance and if he does not appear, may issue warrant to secure his presence.