Kalaimathi Vs. Dhanasekar

Kalaimathi vs Dhanasekar

Type Court Judgment Court Chennai Decided Feb 16, 2012

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https://sooperkanoon.com/case/926534

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Citation: sooperkanoon.com/926534
Court: Chennai High Court
Judge: P.R.Shivakumar, J.
Decided On: Feb 16, 2012
Case Number: CRL.R.C(MD)No.948 of 2011
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

[P.R.SHIVAKUMAR, J.] Negotiable Instruments Act - Section 138 -- The Complainant in S.T.C.No.1721 of 2009, on the file of the learned Judicial Magistrate, Karaikudi is the petitioner in the present revision case. If the Magistrate chose to adjourn the case to a future date, despite the absence of the complainant,Mag...

Key legal issue: Criminal
Acts & sections: Negotiable Instruments Act - Section 138; Code of Criminal Procedure(CrPC) - Section 256;

Parties & Advocates

Appellant / Petitioner

Kalaimathi

Advocate Ms.R.Thirugnanasambandam, Adv.

Respondent

Dhanasekar

Advocate Ms.V.Nagendran, Adv.

Legal References

Acts: Negotiable Instruments Act - Section 138; Code of Criminal Procedure(CrPC) - Section 256;

Excerpt

[p.r.shivakumar, j.] negotiable instruments act - section 138 -- the complainant in s.t.c.no.1721 of 2009, on the file of the learned judicial magistrate, karaikudi is the petitioner in the present revision case. if the magistrate chose to adjourn the case to a future date, despite the absence of the complainant,magistrate shall have to assign reasons for doing so. accordingly, the revision case is dismissed......was taken up for hearing at 3.00 p.m., the complainant as well as his counsel were absent. only the advocate clerk chose to file a petition under section 256 cr.p.c.,presumably, to dispense with the personal presence of the complainant. noting the fact that the counsel was also absent and also the further fact that the complainant was absent on four hearings viz., 29.10.2010, 28.01.2011, 01.04.2011 and 20.05.2011, the learned judicial magistrate chose to pass an order dismissing the complaint and acquitting the respondent herein/accused under section 256 cr.p.c.5. section 256 states the procedure to be adopted in a case, wherein, the summons has been issued and on the date appointed for appearance of the accused or on any other date subsequent thereto to which the hearing may be adjourned,the complainant fails to appear. sub-section (1) of the said section says that the magistrate shall acquit the accused unless for some reason or other he thinks it proper to adjourn the hearing of the case to some other date. the proviso says that if the complainant is represented by a pleader or by an officer conducting the prosecution or where the magistrate is of the opinion that the personal attendance of the complainant is not necessary, the magistrate may dispense with his attendance and proceed with the case.6. of course, though the word shall has been used in sub-section(1), the rider provided therein by the phrase unless for some reason he thinks it proper to adjourn the hearing of the case to some other day, the word shall should be understood as may. that means, a discretion is vested with the magistrate to acquit the accused on the basis of the absence of the complainant or to adjourn the case to a future date. if the magistrate chose to adjourn the case to a future date, despite the absence of the complainant,magistrate shall have to assign reasons for doing so. similarly, the magistrate is also permitted to proceed with the case in the absence of the accused, if he.....

Full Judgment

Prayer

Criminal Revision case filed under Section 397 r/w Section 401 Cr.P.C against the order of dismissal of a complaint filed under Section 138 of Negotiable Instruments Act, for default on 22.06.2011 in S.T.C.No.1721 of 2009, on the file of the Judicial Magistrate, Karaikudi.

ORDER

1. Heard both sides.

2. The Complainant in S.T.C.No.1721 of 2009, on the file of the learned Judicial Magistrate, Karaikudi is the petitioner in the present revision case.

3. The said criminal case was instituted on a private complaint against the respondent for his prosecution and conviction for an offence under Section 138 of Negotiable Instruments Act. After the case was taken on file following the Private Complaint Procedure, summons were served on the respondent and the respondent appeared. Therefore,the petitioner/Complainant continued to be absent for a number of hearings.

4. At last when the matter came up before the learned Judicial Magistrate, Karaikudi for hearing on 22.06.2011, the complainant was absent and hence, the learned Judicial Magistrate chose to pass over the matter to be taken up in the post-lunch session in the hope that the complainant might appear. When the matter was taken up for hearing at 3.00 p.m., the complainant as well as his counsel were absent. Only the Advocate Clerk chose to file a petition under Section 256 Cr.P.C.,presumably, to dispense with the personal presence of the complainant. Noting the fact that the counsel was also absent and also the further fact that the complainant was absent on four hearings viz., 29.10.2010, 28.01.2011, 01.04.2011 and 20.05.2011, the learned Judicial Magistrate chose to pass an order dismissing the complaint and acquitting the respondent herein/accused under Section 256 Cr.P.C.

5. Section 256 states the procedure to be adopted in a case, wherein, the summons has been issued and on the date appointed for appearance of the accused or on any other date subsequent thereto to which the hearing may be adjourned,the complainant fails to appear. Sub-section (1) of the said section says that the Magistrate shall acquit the accused unless for some reason or other he thinks it proper to adjourn the hearing of the case to some other date. The proviso says that if the complainant is represented by a Pleader or by an Officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

6. Of course, though the word shall has been used in sub-section(1), the rider provided therein by the phrase unless for some reason he thinks it proper to adjourn the hearing of the case to some other day, the word shall should be understood as may. That means, a discretion is vested with the Magistrate to acquit the accused on the basis of the absence of the complainant or to adjourn the case to a future date. If the Magistrate chose to adjourn the case to a future date, despite the absence of the complainant,Magistrate shall have to assign reasons for doing so. Similarly, the Magistrate is also permitted to proceed with the case in the absence of the accused, if he is represented by a Pleader or by an Officer conducting the prosecution or the Magistrate is of the opinion that the personal attendance is not necessary. The proviso has been included to see that criminal proceedings instituted on complaints are not unnecessarily be dismissed resulting in the acquittal of the accused, when the case can be proceeded with in the absence of the complainant.

7. In the case on hand, there was continuous absence on the part of the complainant. In addition, though the complainant was represented by a counsel, on the date of hearing when the matter was taken up, counsel was also absent and a petition under section 256 Cr.P.C happened to be filed by an Advocate Clerk. The learned Judicial Magistrate, referring to the sequence of events, has arrived at a correct conclusion that the complaint deserves dismissal, resulting in the acquittal of the accused under Section 256 Cr.P.C. This Court does not find any defect or infirmity in the order passed by the learned Judicial Magistrate, Karaikudi, warranting interference in exercise of this Court's revisional power. There is no merit in the revision and the same deserves to be dismissed.

8. Accordingly, the revision case is dismissed.

Same Court & Year Chennai · 2012 Same Parties Kalaimathi vs Dhanasekar Same Subject Criminal Same Judge P.R.Shivakumar, J. Acts & Sections Negotiable Instruments Act - Section 138; Code of Criminal Pr...

Criminal