Madras High Court

M.Velsabareswaran vs N.Jothilingam on 6 June, 2025

Author: D.Bharatha Chakravarthy

Bench: D.Bharatha Chakravarthy

                                                                                        Crl.A.No.485 of 2012

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 06.06.2025

                                                           CORAM:

                   THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY

                                                   Crl.A.No.485 of 2012

                  M.Velsabareswaran                                                      ...Appellant

                                                                Vs.
                  N.Jothilingam                                                         ...Respondent

                  PRAYER: Criminal Appeal filed under Section 378 of Criminal Procedure
                  Code, to call for the records in C.C.No.116 of 2007 on the file of Judicial
                  Magistrate No. II, Erode and set aside the order dated 03.12.2007 passed by
                  the learned Judicial Magistrate No.II, Erode in C.C.No. 116 /2007.
                                   For Appellant           : Ms.L.Jyothi

                                   For Respondent           : Ms.N.Saranya
                                                              Legal Aid Counsel

                                                            ORDER

This appeal is filed against the judgment of the Judicial Magistrate

No.II, Erode, made in C.C.No.116 of 2017 dated 03.12.2007.

2. It can be seen that on 03.12.2007, when the case being a private

complaint filed under Section 200 of the Code of Criminal Procedure alleging

an offence under Section 138 of the Negotiable Instruments Act, 1881, came

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up for hearing on 03.12.2007, the complainant was absent, and the Court

passed the following order:

“The case was called on for hearing today to which it had been posted. The complainant not being present either in person or by pleader or having been reported dead the accused is acquitted under Section 256, Criminal Procedure Code.”

3. It can thus be seen from the order that the Court recorded two

reasons: that the complainant was either not present or reported to be dead,

and accordingly passed the order. The complainant is very much alive, and it

was also contended by the learned counsel appearing for the appellant that the

complainant had been regularly appearing on all previous occasions and was

absent only on that particular day.

4. There was no appearance on behalf of the accused, and therefore, this

Court appointed Ms.N.Saranya, the learned Legal Aid Counsel, to represent

the accused in the matter and she submits that the Trial Court rightly

dismissed the complaint for default, since the complainant did not appear.

5. I have considered the rival submissions made on either side and

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perused the material records of the case.

6. It is true that the complainant was not present on that day, and

therefore the Trial Court acquitted the accused. However, considering the

overall facts and circumstances of the case and the submission that the

complainant hitherto had regularly appeared , I am of the view that one more

opportunity can be granted to the complainant.

7. In view thereof, Criminal Appeal No. 485 of 2012 shall stands

allowed on the following terms:-

(i) The order dated 03.12.2007 in C.C. No. 116 of 2007 passed by the

Judicial Magistrate No. II, Erode, shall stand set aside. The said C.C. No. 116

of 2007 shall stand restored to the file of the Judicial Magistrate No. II, Erode.

(ii) The next date of hearing shall be on 07.07.2025. On the said date,

the complainant shall appear before the Trial Court. It is made clear that if the

complainant again defaults, the Trial Court will proceed with the matter in

accordance with law.

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(iii) Considering the delay that is caused due to the appeal being

numbered on the file of this Court, transferred back to the District Court and

again to the High Court, and thereafter taken up and disposed of only now, the

Trial Court is requested to dispose of the matter as expeditiously as possible.

(iv) No costs.

06.06.2025 Neutral Citation: Yes/No nsl

To The Judicial Magistrate No. II, Erode.

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D.BHARATHA CHAKRAVARTHY, J.

nsl

06.06.2025