N.R. JANARDHANAM Vs. MANJULA PANNEERSELVAM

JUDGEMENT

(1.) THIS appeal arises out of the order passed by the learned Chief Judicial Magistrate, Chengalpattu, in C.C. No. 9 of 1990, dismissing the complaint on the ground that the complainant was not present either in person or by Pleader and thus acquitting the accused under S. 256 of Code of Criminal Procedure.

(2.) THE complaint filed by the appellant herein before the Magistrate Court was under S. 138 of Negotiable Instruments Act against the respondent. According to the Magistrate when the case was called on the appointed date, the complainant was not present and hence the order was made under S. 256 of Code of Criminal Procedure.

(3.) THE learned counsel for the respondent opposed the appeal mainly on the basis of some of the decisions of this Hon'ble Court as mentioned below. The learned counsel refers to the judgment of K.N. Mudaliyar, J. in Sowbagyam v. Kaliamurthi (1990 L.W.(Crl.) 97). The counsel for the respondent relies on the observation in the judgment that the order of the Magistrate acquitting the accused under S. 247, Code of Criminal Procedure, (old) in view of the absence of the complainant cannot be said to be illegal. The Magistrate had acted within his powers and when the order was not illegal it would not be right for this Court to interfere with it. The learned counsel for the respondent also refers to the judgment of K.M. Natarajan, J. reported in, 1986 L.W. (Crl.) 289 (Narasimhamtirthy K. v. K.S. Rangachari). In the said judgment the learned Judge has relied on the judgment of the Division Bench of this Court reported in : AIR 1926 Mad 1009 (Nagarambilli Tonkya v. Matta Jagannatha and Others) and has ultimately held that the view of the Division Bench was binding on the Single Judge. According to the learned Judge, the Division Bench has held that so long as the Magistrate had acted well within his powers and when the order was not illegal it would not be right for this Court to interfere with it.