R SADHU Vs. M PANDIAN

JUDGEMENT

(1.) This criminal appeal has been filed to remand the case back for trial by setting aside the order dated 22.01.2010, made in S.T.C.No.45 of 2007, on the file of the learned Judicial Magistrate No.IV, Madurai.

(2.) The petitioner is the complainant in S.T.C.No.45 of 2007, on the file of the learned Judicial Magistrate No.IV, Madurai. He filed a private complaint under Section 138 of the Negotiable Instruments Act against the respondent. The respondent filed an application to refer the cheque with the handwriting expert and the same was allowed on 31.07.2009. Even on that day, the complainant was not present. Afterwards, on six occasions including the one on 22.01.2010, he was not present before the Court and there was no representation on his side for all the said hearings. On 22.01.2010, the learned Judicial Magistrate dismissed the complaint. The order of dismissal is as follows:

(3.) Mr.K.Sudalaiyandi, learned counsel appearing for the petitioner strenuously argued that the presence of the complainant was not necessary on that date of hearing viz., on 22.01.2010 and hence, the dismissal of the complaint by the learned Judicial Magistrate is not warranted. In support of his contention, he placed reliance upon a decision of this Court in the case of R.Murali v. D.Udhayakumar, (2007) 1 MLJ (Crl.) 981, in which the learned Judge has followed a decision of the Hon'ble Supreme Court in Associated Cement Company Limited v. Keshvanand, (1998) MLJ (Crl) SC 170 in which it has been held as follows: