V. Srinivasan vs D. Srinivasan

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

Instruments Act and the learned Judicial Magistrate, Fast Track Court, Vellore, passed an order on 14.12.2012, in C.C. No. 51 of 2012,

dismissing the complaint u/s 256(1) Cr.P.C., for the reason that the complainant was called absent and acquitted the accused. Challenging the said

order of acquittal, the complainant had preferred this Criminal Appeal before this Court. The learned counsel for the appellant/complainant

submitted that originally, the case was filed in the year 2006 before the Court of Judicial Magistrate No. III, Vellore, and only in the year 2012, it

was transferred from the Court of Judicial Magistrate No. III, Vellore, to Judicial Magistrate, Fast Track Court, Vellore. The accused, after

receiving summons, did not appear before the trial Court and therefore, NBW was issued against him and the same was pending before the trial

Court for more than four years. While NBW was pending, the learned Magistrate suo moto recalled the NBW issued against the accused and

dismissed the complaint for the absence of the complainant. The learned counsel for the appellant/complainant further submitted that the appellant''s

wife had passed away on 10.11.2012 and prior to that she was hospitalized in Apollo Hospital. In the said circumstances, the complainant could

not appear before the trial Court.

The learned counsel appearing for the respondent/accused submitted that the respondent/accused appeared before the trial Court and got the

warrant recalled. But due to some unavoidable reasons, again he could not appear before the Court. The learned counsel for the

respondent/accused further submitted that there is no illegality in the order passed by the learned Magistrate, since the learned Magistrate, only

after sending notice to the complainant, had invoked the provision u/s 256 Cr.P.C.

This Court considered the submissions made by the learned counsel on either side and perused the records.

Of course, the case was pending before the trial Court for nearly about six years. But, the delay was purely due to non-appearance of the

respondent/accused before the trial Court. According to the complainant, the warrant was pending for several years. Though the learned counsel

for the respondent submits that the warrant had been recalled, the order passed by the learned Magistrate reveals that even on the date of passing

the order, NBW was pending against the accused. It is the duty of the trial Court always to take effective steps for execution of NBW. Though it is

easy for the trial Court to dismiss a complaint u/s 256 Cr.P.C., the Court should not resort to such method when NBW is pending against the

accused for quite a long time. This would give wrong signal to the accused. Balanced approach is required. The complainant having waited before

the Court for several years, he should not be made to suffer due to his absence before the trial Court for one or two hearings. Of course, as per

the provisions of the Code of Criminal Procedure, the complainant should appear before the trial Court and as such, he also should be vigilant.

Anyhow, considering the facts and circumstances of their case, in the interest of justice, the order passed by the learned Judicial Magistrate,

Fast Track Court, Vellore, dated 14.12.2012 in C.C. No. 51 of 2012, is set aside and this Criminal Appeal is allowed.

The learned counsel for the respondent/accused submits that the warrant issued against the accused being recalled by the learned Magistrate

while passing final order, in the said circumstance, the accused undertakes to appear before the trial Court. In view of the above submission, both

the complainant and the accused, who are the appellant and the respondent herein are directed to appear before the learned Judicial Magistrate,

Fast Track Court, Vellore, on 12.8.2013 and the learned Magistrate is directed to proceed with the case according to law. If the

respondent/accused fails to appear on 12.8.2013, it is open to the learned Magistrate to issue NBW against him.