Madras High Court
V.R. Iyyappan vs Moolalingam on 9 January, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09-01-2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Revision Case No. 1369 of 2019
---
V.R. Iyyappan .. Petitioner
Versus
Moolalingam .. Respondent
Criminal Revision Case is filed under Section 397 r/w. 401 of Cr.P.C., to
call for the entire records connected with the Judgment dated 02.07.2019 in
C.A.No.14 of 2019 passed by the learned Principal District and Sessions
Judge, Cuddalore dismissing the Appeal and confirming the Judgment dated
12.04.2016 passed by the learned Judicial Magistrate No.II, Chidambaram in
STC.No.313 of 2013 and set aside the same.
For Petitioner : Mr. S. Sathia Chandran
For Respondent : Mr. D. Baskar
ORDER
This Criminal Revision has been filed praying to set aside the Judgment
dated 02.07.2019 passed in Criminal Appeal No. 14 of 2019 by the learned
Principal District and Sessions Judge, Cuddalore confirming the Judgment
dated 12.04.2016 passed by the learned Judicial Magistrate No.II,
Chidambaram in STC. No. 313 of 2013.
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2. The Revision Petitioner herein is the Complainant. As per the
averments in the Complaint filed under Sections 138 to 142 of The Negotiable
Instruments Act, 1881, during the end of month of December 2012, the
Respondent herein borrowed a sum of Rs.2,00,000/- from the Revision
Petitioner/Complainant and promise to repay the amount with interest.
Subsequently, the Respondent/Accused issued a cheque dated 01.02.2013
bearing No. 162933 drawn on City Union Bank, Chidambaram. When the
Revision Petitioner/Complainant presented the cheque for collection, it was
returned with an endorsement “funds insufficient”. Therefore, the Petitioner
herein/Complainant issued notice to the Respondent on 14.02.2013 and the
same was received and acknowledged by the Respondent herein on
16.02.2013. However, the Respondent has neither sent any reply nor paid the
cheque amount. Therefore, the Revision Petitioner/Complainant had preferred
the Complaint in STC. No. 313 of 2013 before the learned Judicial Magistrate
No.II, Chidambaram.
3. The learned Judicial Magistrate - II, Chidambaram examined the
Complainant as P.W-1. The case was adjourned several times to enable the
Accused to cross-examine the Complainant/P.W-1. In spite of several
adjournments, the learned Counsel for the Accused had not cross-examined the
Complainant/P.W-1. However,
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was absent. The learned Judicial Magistrate, instead of proceeding to the next
stage, straight away dismissed the Complaint and acquitted the Accused by the
judgment dated 12.04.2016. For ready reference, the judgment dated
12.04.2016 reads as follows:-
“A case filed U/s.138 NI Act against an Accused by Thiru.
V.R. Iyappan.
2. The complainant called absent and no representation.
Accused present. For the past three and a half months, no further
witness produced on the side of complainant, but in this juncture,
complainant absent and no representation, hence, this case is
dismissed under Section 256 Cr.P.C. to avoid an unnecessary
calling and to save the golden time of the Court. The Accused is
acquitted.”
4. Assailing the Judgment of acquittal dated 12.04.2016, the
Complainant had preferred the Appeal before the learned District Judge,
Cuddalore. The District Judge, by Judgment dated 02.07.2019 dismissed the
Appeal and confirmed the Judgment of acquittal passed by the trial court.
Aggrieved by the same, the Complainant is before this Court.
5. The learned Counsel for the Petitioner submitted that the Courts
below committed a legal error in acquitting the Respondent/Accused, merely
because the Complainant was absent. Even in the absence of the Complainant,
the Court below ought to have proceeded with the case for disposal on merits.
In support of his contention, the learned Counsel for the Petitioner relied on
the following reported rulings:
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(i) 2017-1-L.W (Crl.) 83 in the case of Sakthivel Vs. Subramaniyan.
The relevant portion is extracted hereunder:
“10. It cannot be lost sight of that the criminal procedure
Code does not envisage for dismissal of complaint or discharge
of an Accused when the complainant had remained absent on the
given date of hearing. It is not essential/necessary in every case
that because of the non-appearance of the Complainant, the
Complainant's case is to be thrown over board. Ordinarily, it is
incumbent on the part of a Complainant tobe present on the given
date of hearing, even though an Accused had not appeared before
the concerned Court. When date was fixed for appearance of an
Accused and not for hearing, the acquittal of Accused for non-
appearance of the Complainant is a grievous error. After all, the
concerned Court is to see as to whether the presence of the
Complainant on the given date of hearing was essential for the
purpose of prosecuting the case. Even when an Advocate for the
complainant was not present (absented himself) on the date of
hearing, the dismissal of complaint for non-prosecution may not
be a proper one.”
(ii) 2017-1-L.W (Crl.) 264 in the case of Rathinammal Vs.
Manickam. The relevant portion reads as follows:
“9. In this connection, it is not out of place for this
Court to make a pertinent mention that the Code of Criminal
Procedure does not provide for dismissal of the 'complaint'.
'Discharge of an Accused' when the Appellant-Complainant
remaine absent. Just because of the Complainant being not
present, it is not necessary in all cases that the Accused shall be
acquitted for the absence of parties either on a single day or for
two or three occasions (especially in a case under Section 138 of
N.I. Act) and the Complaint should not be dismissed in the
interest of delivering substantial justice. Undoubtedly, an
obligation is case upon the Complainant to be present on the date
of hearing, even if the Accused had not appeared. In a given case,
where the Complainant was not present, at the time of hearing
before the trial Court, it may exhibit his laissez-faire or
lackadaisical attitude.”
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(iii) In the case of M/s.BLS Infrastructure Limited vs. Rajwant Singh
and others reported in 2023 Live Law (SC) 153 the Honourable Supreme
Court had an occasion to consider an identical issue. In Para No.13 of the
decision, it was held thus:-
“13 .....Further, if the complainant had not appeared to press
the application under Section 311 of the Code, the learned Magistrate
could have rejected the application under Section 311 of the Code and
proceeded with the case on the basis of the available evidence. We
are, therefore, of the considered view that the learned Magistrate was
not justified in straight away dismissing the complaint (s) and ordering
acquittal of the Accused on mere non-appearance of the complainant.
The High Court too failed to take notice of the aforesaid aspects.
Thus, the orders impugned are liable to be set aside.”
(iv) Crl.A.(MD).No.304 of 2011 in the case of Kasi Pandian Vs.
Thangadurai. The relevant portion reads as follows:
“(5) A victim (as defined under Section 2 (wa) of the
Cr.P.C does not cease to be a victim merely because he also
happens to be a complainant and he can avail all the rights and
privileges of a victim also and (6) The decision of the Single
Judge in Selvaraj holding that the term victim found in Section
372 excludes a complainant, is not legally correct and in a given
case, a complainant, who is also a victim, can avail right granted
under Section 372 of Cr.P.C.?
4. The appellant besides being a complainant he is also a
victim because he suffered financial loss. It is a case instituted on
a private complaint for an offence under Section 138 of
Negotiable Instruments Act. In the circumstances, appeal against
order of acquittal passed by a Magistrate ordinarily lies to the
concerned Court of Sessions.
5. In the circumstances, ordered as under:
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(i) This Criminal Appeal is not maintainable in this
Court.
(ii) The Registrar (Judicial) shall send the entire the case records
to the learned Principal Sessions Judge, Tirunelveli, for disposal
according to law at an early date.
(iii) The Principal Sessions Judge, Tirunelveli, after receipt of the
records will fix a date and issue notice of hearing to both parties.
6. Per contra, the learned Counsel appearing for the
Respondent/Accused submits that the orders passed by Courts below are well
reasoned. When the Complainant, who filed the complaint did not turn up to
the Court for three and half a months, there is nothing wrong on the part of the
Courts below to acquit the Respondent/Accused. The prejudice that had
caused to the Respondent/Accused was also taken note of by the Courts below
while acquitting him of the criminal Prosecution. When an order of acquittal
has been recorded by the trial Court and it was also confirmed by the appellate
Court, this Court, in this Criminal Revision Case, need not interfere with the
same and prayed for dismissal of the Criminal Revision Case.
7. The point for consideration that arose in this Criminal Revision
Case is whether the Judgment dated 02.07.2019 in C.A.No.14 of 2019 passed
by the learned Principal District and Sessions Judge, Cuddalore dismissing the
Appeal and confirming the Judgment dated 12.04.2016 passed by the learned
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Judicial Magistrate No.II, Chidambaram in STC.No.313 of 2013 is to be set
aside as perverse?
8. Heard the learned counsel for the revision petitioner as well as the
learned counsel for the Respondent/Accused. Perused the Judgment of the
learned Judicial Magistrate No.II, Chidambaram and the Judgment of the
learned Principal District and Sessions Judge, Cuddalore.
9. At the outset, this Court is shocked to go through the orders
passed by the Courts below, acquitting the Respondent/Accused for the simple
reason that the Complainant did not turn up for more than three and half a
month along with the witness, if any, to be examined on his side. Such a
course adopted by the trial Court and confirmed by the Appellate Court, cannot
be countenanced. Even assuming that the Complainant or the Accused did not
appear, the trial Court shall either adjourn the case to a next hearing date or
proceed to the next stage of the case. In the present case, if the Complainant
did not turn up to the Court and no witness was produced on his side for
examination, the trial Court could have closed the Complainant side evidence
and proceeded to examine the defence side witness, if any. However, the trial
Court committed a legal error in shutting the doors of justice to the
Complainant
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Respondent/Accused.
10. It is well settled that an order of acquittal passed by the Courts
below should not be interfered with by this Court at the throw of a hat. At the
same time, this Court is not always precluded from interfering with the
Judgment of acquittal passed by the Courts below. In this case, the Order and
Judgment, which are impugned in this Criminal Revision Case, were not
passed by appreciating the merits of the case. Rather, the judgment has been
passed by adopting hyper-technical method. Such a short-cut method resorted
to by the Courts below cannot be appreciated by this Court. This is more so
that the order of acquittal has been passed in a case filed under Section 138 to
142 of The Negotiable Instruments Act. It is settled that in a Criminal
Prosecution, the Accused is entitled to maintain stoic silence and it is for the
complainant to discharge the entire burden of proving his case. While so, the
Courts below, in the opinion of this Court, ought to have afforded one more
opportunity to the Revision Petitioner/Complainant to prosecute the complaint
filed by him. In any event, the gay-abandon with which the Courts below
proceeded to dismiss the complaint filed by the Complainant/Petitioner in this
case cannot be appreciated.
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11. In all the decisions relied on by the Counsel for the Revision
Petitioner/Complainant, which are extracted supra, it was time and again
reiterated that merely because the Complainant or his or her Counsel did not
appear, it will not be a ground for the Criminal Court to acquit the Accused by
adopting a hyper-technical approach. The said judgments squarely apply to
the facts of the present case. In this case, the Courts below have acted in
impulsive haste to record a Judgment of acquittal merely because the
Complainant was absent, which cannot be accepted by this Court.
12. In the light of the above discussions and on the basis of the
various decisions cited by the learned Counsel for the Revision
Petitioner/Complainant, the point for consideration is answered in favour of
the Revision Petitioner and against the Respondent. The Judgment dated
02.07.2019 made in Criminal Appeal No.14 of 2019 passed by the learned
Principal District and Sessions Judge, Cuddalore confirming the Judgment
dated 12.04.2016 passed by the learned Judicial Magistrate No.II,
Chidambaram in STC.No.313 of 2013 is found perverse and the same is to be
set aside.
In the result, this Criminal Revision Case is allowed. The Judgment
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dated 02.07.2019 made in Criminal Appeal No.14 of 2019 passed by the
learned Principal District and Sessions Judge, Cuddalore confirming the
Judgment dated 12.04.2016 passed by the learned Judicial Magistrate No.II,
Chidambaram in STC.No.313 of 2013 is set aside. The The learned Judicial
Magistrate - II, Chidambaram is directed to examine the Accused under
Section 313 Cr.P.C., if not already examined, hear the arguments of Counsel
for both sides and dispose of the Complaint based on the evidence available on
merits. Such an exercise shall be undertaken by the learned Judicial
Magistrate-II, Chidambaram to complete all the formalities and to wrap up the
Complaint, within a period of one month from the date of receipt of a copy of
this order and report compliance.
09-01-2025
dh
Index: Yes/No
Internet:Yes/No
Speaking Order/Non-speaking Order
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To
1. The Principal District and
Sessions Judge, Cuddalore.
2. The Judicial Magistrate – II,
Chidambaram.
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SATHI KUMAR SUKUMARA KURUP, J.
dh
Order made in
09-01-2025
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