Madras High Court
Annachamy vs Sivasubramanian on 4 January, 2023
Crl.A(MD)No.330 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.01.2023
CORAM:
THE HON'BLE MR.JUSTICE G.ILANGOVAN
Crl.A(MD)No.330 of 2022
Annachamy ... Appellant/Complainant
Vs
Sivasubramanian ...Respondent /Accused
Prayer: This Criminal Appeal Case filed under Section 378(3) of Cr.P.C, to set
aside the judgment and acquittal order passed by the learned Judicial
Magistrate, Alangulam, dated 10.11.2021 in S.T.C.No.1624 of 2017 and restore
the case on its file.
For Appellant : Mr.K.Sivabalan
for Mr.Anandan.B
For Respondent : Mr. Pinayagash.I
JUDGMENT
The appeal has been preferred against the order of acquittal in S.T.C.No.
1624 of 2017, dated 10.11.2021, by dismissing the complaint filed under
Section 200 of Cr.P.C. against the respondent herein for the alleged offence
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Crl.A(MD)No.330 of 2022
under Section 138 of Negotiable Instrument Act.
2. The appellant filed the private complaint which was taken cognizance
in S.T.C.No.1624 of 2017, posted for cross examination of the appellant several
times. Inspite of several opportunities given, the appellant did not appear before
the trial Court. So that, the case was dismissed by order dated 10.11.2021 and
the accused was acquitted.
3. The learned counsel for the appellant would submit that the appellant
regularly appeared before the trial Court, but due to pandemic situation, only for
one or two hearings he could not appear and the above said order has been
passed.
4. Per contra, the learned counsel for the respondent would submit that
repeatedly the appellant did not appear before the trial Court from 2018. More
than several opportunities were given to the appellant. So, there is no reason to
interfere with the order of trial Court.
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Crl.A(MD)No.330 of 2022
5. Further, the learned counsel for the appellant would submit that even
though the appellant was present thrice before the trial Court for the purpose of
cross examination, the learned counsel for the respondent did not cross examine
him. So, one more opportunity may be given to the appellant, so that the matter
can be disposed on merits.
6. Further. the learned Counsel for the respondent would also rely upon
the order that has been passed by this Court in Crl.A.Nos.506 and 567 of 2014
and Crl.A(MD) No.313 of 2011 dealing with similar circumstances.
7. Perusal of B Diary extract shows that right from the beginning, most of
the times, because of absence of either side, the matter has been dragged on for
several hearings. At one point of time, the learned counsel for the appellant had
reported no instruction. So on that ground, notice was ordered to the appellant
and in pursuance of the above said notice, he appeared and sought time to
engage the Advocate, that was also considered by the trial Court on 26.10.2021,
accordingly the matter was taken up on 10.11.2021. But the complainant did not
appear before the trial Court on 10.11.2021. So, noting the conduct of the
complainant, it was dismissed on 10.11.2021. So, no grievance can be
expressed by the appellant with regard to the proceedings taken up by the trial
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Crl.A(MD)No.330 of 2022
Court. More than sufficient opportunity was given but for what reason the
appellant has dragged the matter is not known. The respondent who is the
accused cannot be kept under the threat of the prosecution endlessly.
8. However, considering the circumstances that the offence under Section
138 of Negotiable Instrument Act, appeal may be allowed by way of cost. So,
on the considered view that the appeal can be allowed on payment of cost of Rs.
10,000/- to the respondent. The appellant must deposit Rs.10,000/- before the
trial Court within 15 days from the date of receipt of copy of the order and after
deposit being made, the trial Court shall restore the complaint to its file and
proceed in accordance with law. The respondent who is the accused may
withdraw the above said amount through proper application.
9. It is further ordered that the trial Court must fix the particular date for
appearance of the appellant and respondent for the purpose of cross
examination. If the appellant fails to appear on the particular date, then the order
of dismissal that was passed by the trial Court will automatically restored. The
trial Court concerned is directed to dispose the matter within three months of
the appearance of the parties, if full trial undertaken.
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Crl.A(MD)No.330 of 2022
10. With the above directions, this appeal is allowed and the order of
acquittal and dismissal is set aside.
04.01.2023
NCC : Yes / No
Index :Yes/No
Internet:Yes/No
indu
To
The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.A(MD)No.330 of 2022
G.ILANGOVAN,J.
indu
JUDGMENT IN
Crl.A(MD)No.330 of 2022
04.01.2023
https://www.mhc.tn.gov.in/judis
