9911796707
TMI Blog2018 (9) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... business of selling dyes and chemicals required for clothing materials. The respondent had purchased the dyes and chemicals from the appellant Corporation and thereby issued a post-dated cheque for an amount of Rs. 1,24,462/- bearing cheque No.052153 dated 30.03.2005 drawn at Bank of India, Porur Branch and instructed the respondent to present the cheque on 31.05.2005. When the respondent presented the cheque for clearance at Indian Overseas Bank, Ramnagar Branch, Coimbatore on 31.05.2005, the cheque was returned with an endorsement "Funds insufficient" through a memo dated 31.05.2005. Hence, the appellant sent a notice to the respondent on 17.06.2005 informing him about the dishonour of the cheque calling upon the respondent to pay the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned to 27.01.2010 and on that day, neither the appellant nor his counsel appeared before the Trial Court. Hence, the case was dismissed for default and the respondent was acquitted. Aggrieved against the order passed by the Judicial Magistrate-II, Coimbatore, the appellant is before this Court with this Criminal Appeal. 5.Heard Mr.N.Manokaran, learned counsel for the appellant and perused the materials placed before this court. None appeared on behalf of the respondent. 6.The learned counsel for the appellant would submit that when the appellant's side evidence was completed, the matter was posted for defence side evidence. Since, the respondent did not produce any evidence, the defence side evidence was also closed and the matter wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-II, Coimbatore failed to follow the provisions of law and also settled propositions of law laid down by the Hon'ble Apex Court. Therefore, the order passed by the learned Judicial Magistrate-II, Coimbatore warrants interference and prays to set aside the order dated 01.02.2010 and allow this appeal. 8.In support of his contention, the learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in the case of Associated Cement Co. Ltd., Vs. Keshvanand reported in 1998 (1) SCC 687 and based on the judgment, before dismissing the complaint, the learned Judicial Magistrate No.II, Coimbatore ought to have issued a notice to the appellant. But, in the present case, the Trial Court has not sent any notice to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat day, the appellant did not present before the Court. Hence, the case was dismissed for default. 11.The main contention of the appellant is that after closing the defence side evidence, the matter was not posted for sometime. When enquired in the Registry, it was informed that the bundle was misplaced and hence it could not be posted. But, it was suddenly posted on 27.01.2010 and dismissed for default on the ground that the appellant was absent on that day and acquitted the respondent under Section 256 of Cr.P.C. 12.Admittedly, on behalf of the appellant, the Deputy Manager appeared before the Magistrate and marked necessary documents and the appellant's side evidence was closed on 18.08.2007 and posted for defence side evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. 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 anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was also closed and reserved for judgment. At that stage, the presence of the appellant is not necessary, as per the provisio to Section 256 Cr.P.C the Hon'ble Apex Court also in the decision cited supra clearly held that the presence of the complainant is not necessary. Due to the non-appearance of the appellant on that day, the Judicial Magistrate should not have dismissed the complaint on the ground of non-appearance of the appellant especially under Section 256 Cr.P.C. 17.In the present case on hand, it is stated that the matter was reserved for judgment on 20.01.2010 and subsequently it was adjourned to 27.01.2010 for reopening the case. Either on 20.01.2010 or 27.01.2010, the presence of the appellant is not necessary. Even as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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