Madras High Court
K.Nilesh Nahar vs B.Vanitha on 9 July, 2021
Crl.A.No.205 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.205 of 2021
K.Nilesh Nahar,
Proprietor: M/s.Nahar Credit Corporation,
Rep. by its Power of Attorney,
K.Sunil Kumar Nahar, aged about 49 years,
S/o.Kamalchand Nahar,
No.334, Mint Street, Sadasivam Complex,
Sowcarpet, Chennai - 600 079. ... Appellant
Vs.
B.Vanitha ... Respondent
PRAYER: Criminal Appeal is filed under Section 378 of Cr.P.C. to set aside the
Judgment of dismissal of acquittal passed by the learned VIII Metropolitan
Magistrate, George Town, Chennai in C.C.No.4689 of 2013, dated 10.02.2021 and
restore the complaint in C.C.No.4689 of 2013, on the file of the learned VIII
Metropolitan Magistrate, George Town, Chennai.
1/8
https://www.mhc.tn.gov.in/judis/
Crl.A.No.205 of 2021
For Appellant : Mr.M.Murali
For Respondent : Mr.R.Subramaniam
JUDGMENT
This Criminal Appeal is filed by the appellant / complainant to set aside
the Judgment of acquittal passed by learned VIII Metropolitan Magistrate,
George Town, Chennai in C.C.No.4689 of 2013, dated 10.02.2021 and restore
the complaint in C.C.No.4689 of 2013, on the file of the learned VIII
Metropolitan Magistrate, George Town, Chennai.
2. The appellant, as a complainant initiated a private complaint against
the respondent/accused under Section 200 of Cr.P.C. before the learned VIII
Metropolitan Magistrate, George Town, Chennai for an offence punishable under
Section 138 of the Negotiable Instruments Act, and the same was taken on file
by the learned Metropolitan Magistrate, George Town, Chennai in C.C.No.4689
of 2013. When the matter came up for hearing on 10.02.2021, the complaint
filed by the appellant/complainant was dismissed under Section 256 of Cr.P.C.
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Crl.A.No.205 of 2021
and the respondent/accused was acquitted. Challenging the said order passed
by the learned Metropolitan Magistrate, the appellant/complainant has filed the
present appeal.
3. The learned counsel for the appellant would submit that the
appellant/complainant was examined in chief and the case has been adjourned
for cross examination of P.W.1 on 03.12.2019 and the respondent/accused did
not appear and sought several adjournments by filing a petition under Section
317 of Cr.P.C., and even on 10.02.2021, the accused/respondent called absent
and filed petition under Section 317 of Cr.P.C. and the counsel for the
respondent was not ready for cross examination. It is further submitted that
except two or three hearings, appellant / complainant appeared before the
learned Metropolitan Magistrate, however, the learned Metropolitan Magistrate,
dismissed the petition, without giving any final opportunity to the
appellant/complainnat and acquitted the respondent/accused under Section
Section 256 of Cr.P.C. and hence, the learned counsel for prays for setting aside
the Judgment passed by the Court below.
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Crl.A.No.205 of 2021
4. The learned counsel for the respondent/accused would submit that as
a complainant, he should appear before the Court as and when required and he
cannot take the advantage of the absence of the respondent/accused and it is
the duty of the complainant to present in Court. When the matter was called in
the morning on 10.02.2021 and till 15.10 hours, there was no representation and
therefore, the learned Metropolitan Magistrate, dismissed the petition and
acquitted the respondent/accused and there is no merit in the appeal and the
appeal is liable to be dismissed.
5. Heard the learned counsel on either side and perused the materials
placed on record.
6. The appellant herein has filed a private complaint under Section 200 of
Cr.P.C., however, the same was dismissed under Section 256 of Cr.P.C. for non
appearance of the appellant/complainant, and the respondent/accused was
acquitted, which shows that no opportunity was given to the complainant. It is
to be noted that before dismissing the petition, the learned Metropolitan
Magistrate has not given final opportunity to the complainant for his appearance
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Crl.A.No.205 of 2021
and a perusal of the records, on several hearings, the respondent/accused did
not appear and filed petitions under Section 317 of Cr.P.C., which were allowed
by the learned Metropolitan Magistrate. A perusal of the records, it could be
seen that the complainant/appellant was absent for only two or three hearings
and however, the learned Metropolitan Magistrate, dismissed the private
complaint filed under Section 200 of Cr.P.C., as if, the appellant/complainant
has not appeared the Court Proceedings on several hearings. A perusal of the
record would further shows that the complainant appeared most of the hearings
before the trial Court, however, he was not present two or three hearings,
however, before giving final opportunity to the appellant/complainant, the
learned Metropolitan Magistrate dismissed the complaint filed under Section 200
of Cr.P.C. Since the complaint filed by the appellant/defacto complaint came
to be dismissed on the ground of non appearance, in order to give one more
opportunity to the appellant/complainant, the order passed by the learned
Metropolitan Magistrate, George Town, Chennai dated 10.02.2021 is set aside
and the appeal is allowed. The appellant / complainant is directed to appear
before the learned Metropolitan Magistrate, George Town, Chennai on
26.07.2021 and on the said date, the learned counsel for the
respondent/accused is directed to cross examine the complainant and
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Crl.A.No.205 of 2021
thereafter, the learned Metropolitan Magistrate, George Town, Chennai is
directed to proceed the complaint in accordance with law.
7. With the above directions, this Criminal Appeal is allowed.
09.07.2021
Speaking Order / Non-speaking order
Index : Yes / No.
Internet : Yes.
rns
Note: Issue order copy on 15.07.2021
https://www.mhc.tn.gov.in/judis/
Crl.A.No.205 of 2021
To
The VIII Metropolitan Magistrate, George Town,
Chennai.
https://www.mhc.tn.gov.in/judis/
Crl.A.No.205 of 2021
P.VELMURUGAN, J.
rns
Crl.A.No.205 of 2021
09.07.2021
https://www.mhc.tn.gov.in/judis/
