Madurai: The Madras High Court today ruled
that a case cannot be dismissed just because the complainant
was absent for a long time unless it is proved that his/her
appearance is essential for its hearing.
Allowing a criminal appeal filed by a complainant in a
cheque bounce case, Justice S Palanivelu of the Madurai bench
said a private complaint cannot be dismissed just because the
complainant failed to appear during consecutive hearings.
"Unless it is proved that the complainant's presence is
essential for hearing the cases, the JM cannot dismiss the
case," the judge said.
He observed that the magistrate should record the reasons
as to the necessity of the presence of complainant before the
court.
There should be finding in the order that without the
presence of the complainant the case could not be proceeded on
the particular date which paved the way for dismissal of the
complaint, the judge held.
He pointed out that in the present case neither the
complainant nor his counsel turned up continuously for six
hearings.
"Still the law requires that unless the presence of the
complainant is essential for a particular hearing, the learned
Judicial Magistrate cannot dismiss the complainant," he said.
Judicial Magistrate No IV here had dismissed the private
complaint on January 22 and acquitted the accused even as the
complainant was awaiting the report of a handwriting expert
with regard to the documents relating to the case.
Directing to restore the cheque bounce case, the judge
said even the Supreme court had categorically held that "if
the presence of the complainant on a given day was not
necessary, then resorting to the step of dismissing the
complaint may not be proper."
PTI
First Published: Friday, July 23, 2010, 22:43