TaxTMI 
TaxTMI 
2022 (6) TMI 970
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....actured the knitted hosiery garments and supplied to the accused as demanded by them and had raised invoices for the same. iii) To discharge the liability, the accused had issued various cheques from 8.2.2020 to 16.2.2020 which were dishonoured when presented for payment with the endorsement "Funds Insufficient" and thereby, a sum of Rs. 33,37,657/- was due to be paid by accused. iv) The complainant had issued a notice to the accused on 18.5.2020 calling upon them to settle the amounts and thereupon, they had paid a sum of Rs. 15,00,000/- and thereafter, they failed to settle the remaining amount due to the complainant. v) The accused, knowing well that they have no sufficient funds in their account, had issued the cheques and they have not come forward to settle the dues fully, even after receipt of statutory notice and thereby, they have committed an offence punishable under Section 138 of the Negotiable Instruments Act and hence, the petitioner had filed the private complaint before the Judicial Magistrate, Avinashi on 16.7.2020. vi) The complaint was returned for certain compliances on 17.7.2020 and after compliances, it was re-presented on 2....
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....er submit that the Trial Court had also not issued any notice to the petitioner before dismissing the complaint. In support of his contention, he would rely upon the following decisions:- i) S. Sankar v. C.V. Pasupathi (2001 Cri. LJ 2144) ii) K. Meenakshi vs. S. Mohana (2008 Cri. LJ 1781) iii) O.C. Periyasamy vs. D. Venkatesan @ Ravi (CDJ 2010 MHC 4389) 5. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 6. The present complaint is by a private party for the offence punishable under Section 138 of the Negotiable Instruments Act. The complainant is not a public servant. Therefore, presence of the complainant and his/her examination on oath is absolutely necessary before taking the complaint on file. Since the complainant was absent on 12.11.2021, he was called absent and the court finding that the complainant is not interested to proceed with the case further, had dismissed the complaint under Section 256 Cr.P.C. 7. The dismissal of the complaint can be made only after the same is taken on file. In the instant case, it appears that the learned Magistrate, even before issuing process to the accus....
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.... through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum. 14. Reading the section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the section. 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. 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 this 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 ....
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....be applicable only after the Complaint is taken on file and summons are issued to the accused and on the day appointed for the appearance of the accused, on his/her appearance and if the complainant does not appear, the Magistrate shall acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. The object of the provision is that Courts should take serious note of absence of the person, who approaches the Court to set the law in motion, when the accused person makes himself present before Court for enquiry. 10. On 24.04.2003, at the time when the Complaint was taken on file, the accused/Petitioner did not have any role to play. Only after summons are issued, the role of the accused commences, as she is aggrieved by the orders of the learned Magistrate. The Order dated 10.04.2003 cannot be ascribed to be a judicial order, but could be construed only as an Office Note made on the Complaint for certain compliance. Unless all the requirements stipulated under Section 200, Cr.P.C. are complied with, the learned Magistrate cannot proceed further on the basis of the Complaint made. In the absence of dismissal of a Complaint....