Full Judgment
(Prayer: Appeal filed under Section 378 of the Criminal Procedure Code, against the judgment dated 25.08.2014 made in Cr.M.P.No.1739 of 2014 in C.C.No.77 of 2012 on the file of the Judicial Magistrate Court No.V, Madurai.)
1. Time and again, this Court was constrained to issue notice to the complainant for his appearance and disposal of the case; the complainant would appear in the Court only to disappear later ?. - This is the poignant observation of the Court below, upon the conduct of the complainant. With an observation that despite prompt appearance of A-1 and A-2, for a period of two years, the complainant was absent and therefore the complaint deserves to be dismissed, the complaint has been dismissed by order dated 25.08.2014. This order is under challenge in this appeal.
2. The learned counsel for the appellant would submit that the nature of the allegations made in the complaint is with reference to the interest of the denominational trust and the amount of public money involved is huge and therefore, one more opportunity is to be given to the complainant, though not the conduct of the complainant is justifiable.
3. The contention of the learned counsel for the appellant is that even though the complainant was absent he has authorised his counsel to represent the case before the Court below and in fact, a petition under Section 256 Cr.PC had been filed and therefore, the mistake of the counsel should not be allowed to penalise the complainant.
4. Section 256 of Cr.PC is reproduced for convenient reference:
Non- appearance or death of complainant.
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.
From the perusal of the provision, it is evident that the complainant can also be represented by a counsel wherever his personal presence is not necessary. It is the case of the complainant that he had given authorisation to the counsel to represent him and the counsel failed to represent him. This explanation may hold good for the single day of his absence. But, the conduct of the complainant is blame-worthy throughout the period of two years. However, the dismissal of the complaint should have taught him serious lessons to him. That made him to say before the Court that he is prepared to compensate the mistake committed by him.
5. Having regard to the nature of the complaint, this Court is of the view that the inconveniences faced by the accused can be compensated by cost, and hence subject to stringent conditions, opportunity must be given to the complainant to prosecute his case.
6. In view of the nature of complaint, the assurance given before this Court by the complainant, atonement expressed by him for his past conduct, the complainant is given opportunity to prosecute his case subject to the following conditions:
(1) The complainant shall be present before the Court personally on all the hearings;
(2) The complaint shall be prosecuted preferably on a day to day basis, subject to the convenience of the Court;
(3) There shall not be an adjournment at the instance of the complainant;
(4) the complainant shall pay a cost of Rs.10,000/- each to A-1 and A-2, totalling Rs.20,000/- (Rupees Twenty Thousand Only) so that the complainant will realise the value of time spent by the accused, and this amount shall be paid within a period of ten days from today;
(5) The complainant shall cooperate for the speedy disposal of the complaint and the learned Magistrate shall endeavour to dispose it of within a period of one month from the date of receipt of a copy of this order.
Subject to these conditions, the impugned order is set aside. It is made clear that the impugned order is set aside not on account of any mistake in the order passed by the Court below, but on account of realisation of the mistake committed by the complainant, on account of the impugned order day basis and dispose it of finally, within a period of one month from the date of receipt of a copy of this order.
7. The Criminal Appeal is disposed of accordingly.