R. Banumathi, J.@mdashThis Appeal is directed against the Order of Acquittal of the accused. By the impugned Judgment under Appeal, Judicial Magistrate No.III, Coimbatore has acquitted the Respondent / accused u/s 256(1) of Crl.P.C. (in a private complaint filed by the Complainant u/s 138 of Negotiable Instruments Act) for non-appearance of the Complainant.
2. Complainant - Hindustan Cotton Spinning Mills is a Partnership Firm engaged in manufacturing activities. The accused was having business transaction with the Complainant. In the regular course of business, the accused purchased 30 carded yarn on credit. As per the accounts maintained by the Complainant, in the regular course of business, Respondent / accused has to pay a sum of Rs.4,57,793/= to the Complainant. In fact, admitting his liability, the accused had executed an Agreement dated 28.07.1994 along with his father-in-law R.Balasubramaniam. The said R.Balasubramaniam was the guarantor for the amount payable.
3. To discharge the amount payable, Respondent / accused had issued the Cheque on 05.07.1994 for Rs.4,57,793/= (drawn on Indian Bank, Kamaraj Road, Tiruppur bearing No.282997). The Complainant presented the cheque for collection through their Bankers - Bank of Baroda, Tatabad, Coimbatore. The cheque was returned for "want of sufficient funds". The Complainant issued legal notice on 07.08.1994 informing the accused about the return of the cheque and requesting to arrange for the payment of the amount. The notice issued was also returned and the Complainant received the same on 11.08.1994. Even before the issuance of notice, the accused had made part payment of Rs. one lakh, perhaps knowing about the issuance of notice.
4. 09.09.1994, 10.09.1994 and 11.09.1994 were declared as Government Holidays. Hence the Complaint was filed before Judicial Magistrate No.VI, Coimbatore on 12.09.1994. Sworn statement of the Complainant was recorded on 20.09.1994. The same was taken on file in C.C.347/1994 on the same day - 20.09.1994 on the file of Judicial Magistrate No.VI, Coimbatore.
5. On administrative grounds, the case was transferred to Judicial Magistrate No.III, Coimbatore and re-numbered as C.C.1637/1995. The case was firstly posted for hearing on 26.06.1995. On that date, the parties were not present. Pointing out "Parties have not entered appearance", notice was ordered. The case was then adjourned to 27.07.1995, 31.08.1995, 05.10.1995 and 26.10.1995. Even when the parties have not yet entered appearance before Judicial Magistrate No.III, Coimbatore, the learned Magistrate dismissed the Complaint under Sec. 256(1) of Crl.P.C. for non-appearance of the Complainant, acquitting the accused.
6. Aggrieved over the dismissal of the Complaint and acquittal of the Respondent under Sec. 256(1) of Crl.P.C., the Complainant has preferred this Appeal. Submitting that the Complainant had no personal knowledge about the transfer of the case to the Judicial Magistrate No.III, Coimbatore, the learned counsel for the Complainant has submitted that the absence of the Complainant on the hearing dates does not automatically result in dismissal of the Complaint. Relying upon
7. In this Appeal, despite issuance of notice for several hearings, Respondent / accused has not entered appearance. Service was held to be sufficient. Name of the Respondent / accused printed in the cause list. The arguments of the Appellant / Complainant heard.
8. For appreciating the contentions urged, (i) lower court records; and (ii) ''B'' Diary were called for. That apart, the Magistrate has also submitted a Report along with the Diary extract.
9. Upon consideration of these submissions and the materials on record, the only point that arises for consideration is In the light of the transfer of the case to the Court of Judicial Magistrate No.III, Coimbatore, Whether the trial court was justified in dismissing the Complaint for non-appearance of the Complainant and acquitting the accused under Sec. 256(1) of Crl.P.C.?
10. From the Diary extract sent and perusal of ''B'' Diary, it is seen that after transfer of the case to the file of Judicial Magistrate III, on 26.06.1995, the case was firstly posted for hearing; on which date, both the Complainant and the accused were not present. Notice was ordered for the hearing on 27.07.1995. Both parties were not present. On the subsequent hearing dates also i.e.27.07.1995, 31.08.1995 and 05.10.1995, notice was again ordered. From the available records and perusal of the lower court records, it is not known whether the notice was actually sent and the Complainant was served upon the notice about the transfer.
11. It is seen from the Diary Extract that on 31.08.1995 on behalf of the Complainant, a Petition was filed under Sec. 256 Crl.P.C., which was allowed dispensing with his personal appearance on that day. Rest of the hearing dates, the Complainant had not entered appearance. Finally on 26.10.1995, by the impugned order, the trial court dismissed the Complaint acquitting the accused under Sec. 256(1) of Crl.P.C.
12. When trial court had acquitted an accused due to non-appearance of the Complainant, the Appellate Court has the same power as the trial court to reach a fresh decision as to whether on the particular situation the Magistrate should have acquitted the accused. What the trial court did not then ascertain and consider could, perhaps, be considered by the Appellate Court and a decision different from the trial court can be taken by the Appellate Court, whether the order of acquittal should have been passed in the particular situation.
13. On a reading of Sec. 256(1) Cr.P.C., it is clear that three courses are open to the Magistrate,
(i) he may acquit the accused;
or
(ii) he may adjourn the hearing of the case; or
(iii)he may dispense with the personal attendance of the Complainant and proceed with the case.
Consequently it is obvious that the Magistrate has to take care whether on the facts of the case it would be appropriate to dismiss the Complaint or to acquit the accused or to adjourn the case to some other day or dispense with the presence of the complainant. The real test in such matters is always one of "good faith". The surrounding circumstances and facts have to be taken note of whether the Complainant was absent for any good reason or not.
14. The consistent view taken by various High Courts is that on the date fixed in the Complaint if the Complainant is absent, the Magistrate shall acquit the accused. But this is a judicial discretion to be exercised by the Court. Dismissal of the Complaint is not to be adopted as a device to put an end to the litigation. It is relevant to refer to the decision
"When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice". (underlining added).
15. In the light of the above, it is to be seen whether the learned Magistrate has exercised the discretion judicially. In my view, for more than one reason, the trial court ought to have exercised the discretion judicially. As noted earlier, the cheque amount of Rs.4,57,793/= is due on a business transaction. The Complaint was filed in September 1994 on the file of Judicial Magistrate No.VI, Coimbatore. The Complainant was diligently pursuing the case, till the case was transferred to Judicial Magistrate No.III, Coimbatore. The case was transferred to the Court of Judicial Magistrate No.III, Coimbatore in May 1995. It is not discernible from the ''B'' Diary and the lower court records as to whether the notice was actually sent to the Complainant and the accused and served upon them. Equally it is not known whether the counsel were informed about the transfer. No doubt, on 31.08.1995 a petition was filed on behalf of the Complainant to dispense with his appearance. There may or may not have been instruction to file this application. Filing of Petition to dispense with personal appearance on 31.08.1995 does not in any way amount to actual notice of the Complainant for transfer of the case to the file of Judicial Magistrate No.III, Coimbatore.
16. No doubt, the Complainant has not appeared for more than five hearings. It is relevant to note that the accused has also not entered appearance on those hearing dates. It is clear that both parties were not put on notice about the transfer. Contention of the Complainant that he was not put on notice about the transfer cannot be brushed aside. The situations of this case are,
(i) involvement of the huge amount in the cheque;
(ii) that the case was transferred from one court to another;
(iii) absence of any materials showing actual service of notice upon the complainant.
In the light of the above factual situation dismissal of the Complaint is not justified.
17. While dismissing the Complaint, the trial court has not judicially exercised the discretion and the order of acquittal is to be set aside. The matter is remitted back to the trial court for fresh disposal in accordance with law.
18. For the reasons stated above, the Order of Judicial Magistrate No.III, Coimbatore in S.T.C.No.1637/1995 (dated 26.10.1995) dismissing the Complaint under Sec. 256(1) Crl.P.C.is set aside. The matter is remitted back to the trial court. The trial court is directed to restore the Complaint on its file and dispose the same in accordance with law. The trial court is also directed to issue notice to the Complainant and the accused to appear before the Court.
