Mr.R.Vijayababu, v. Mr.K.Subramani, S/O.Kuppusamy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.06.2015 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN Crl.Revision Case No.157 of 2014 R.Vijayababu .. Petitioner v.

K.Subramani .. Respondent Revision Petition filed under Sections 397 read with Sec. 401 of Cr.P.C. against the order dated 13.11.2013 passed by the learned Judicial Magistrate, Arakkonam in C.C.No.178 of 2011 and restore the complaint to file.

For Petitioner :

Mr.P.Ramanathan For Respondent :

No appearance

ORDER

This revision is filed as against the dismissal of the complaint for non appearance of the complainant.

2. The petitioner herein is the complainant and the respondent is the accused.

3. The petitioner herein has filed the Calander Case before the Court below under Section 200 Cr.P.C. read with Section 138 of the Negotiable Instrument Act contending that in the course of financial transaction between him and the accused, a sum of Rs.2,00,000/- is due and payable by the accused and in order to repay the same, he issued a cheque drawn on HDFC Bank, Chennai, dated 13.12.2010 for Rs. 2,00,000/- and on presentation, the said cheque was returned with an endorsement 'insufficient funds'. Therefore, after issuing the statutory notice on 04.5.2011, the petitioner filed the above Calandar case before the Court below. When the case is posted for cross examination of P.W.1, the same was dismissed for non appearance of the complainant, namely, the petitioner herein. Therefore, the petitioner has come forward with this revision.

4. According to the petitioner, his brother was hospitalized during the relevant point of time and subsequently his brother died. Therefore, he was unable to appear before the trial Court proceedings including on 13.11.2013. As per the court records, the petitioner was absent on four occasions. But, according to him, only on two occasions he was absent. The petitioner filed an application

under section 317 Cr.P.C stating that he is ready and willing to participate in the proceedings. Since the petitioner-complainant was absent on 13.11.2013, the trial court dismissed the complaint filed by the petitioner in C.C.No.178 of 2011 for non prosecution.

5. Though notice was served on the respondent-accused, none appears on behalf of him. The name of the respondent has been printed in the cause list.

6. I have perused the materials available on record.

7. On a perusal of the order passed by the court below it could be seen that though the petitioner-complainant appeared before the court below on several days, since he could not appear before the court on the date of judgment due to unavoidable circumstances, the trial court dismissed the complaint for non prosecution, which is not permissible in law and that too, without giving an opportunity to the petitioner to put-forth his case.

8. As per the judgment of the Hon''ble Apex Court reported in (2013) 3 SCC 721 [K.S.Panduranga vs. State of Karnataka], if the petitioner do not appear, there is no necessity for the Court, which is hearing the matter, to issue warrant for special notice or appoint any Amicus Curiae to argue the matter on behalf of the petitioner. The Court is empowered to deal with the matter on merits and dispose of the same and not on the ground of non prosecution.

9. But in the case on hand, the Court below, without going into the merits of the case, has dismissed the petition only on the ground of non appearance of the complainant/ petitioner, which is contrary to the proposition laid down by the Hon`ble Supreme Court in the case cited supra.

10. In view of the same, the order passed by the learned Judicial Magistrate, Arakkonam in C.C.No.178 of 2011 is set aside and the matter is remitted back to the court below for fresh consideration. The Judicial Magistrate, Arakkonam, shall decide the matter afresh after providing opportunities to both the parties and dispose of the same on merits and in accordance with law. Sd/- Assistant Registrar True Copy Sub Assistant Registrar Ga To

1. The Judicial Magistrate, Arakkonam.

2.-do- Thro the Chief Judicial Magistrate, Vellore.

3.The Public Prosecutor, Madras.

1 cc to Mr.P.Ramanathan, Advocate Sr.No.27866 Crl.R.C.No.157 of 2014 rj(co) pmk.1.7.2015