N. RENGARAJ Vs. P. DHAMODARASAMY

JUDGEMENT

(1.) THE appellant herein is the Deputy Commissioner of Income -tax, Coimbatore and this appeal is filed against the order passed by the learned Judicial Magistrate No. II, Coimbatore in C. C. No. 856 of 2000 acquitting the accused under Section 256 of the Criminal Procedure Code for non -appearance of the complainant.

(2.) THE learned special public prosecutor submitted that the complaint was filed against the accused for offence punishable under Section 276C(2) of the Income -tax Act, 1961. After complaint being filed, process was issued to the accused on January 29, 2001, and the accused also made his appearance on March 7, 2001.

(3.) THE learned special public prosecutor submitted that on August 3, 2001, the accused was also absent and an application under Section 317 of the Criminal Procedure Code was filed. The learned Counsel for the appellant relied on the decision reported in Associated Cement Co. Ltd. v. Keshvanand : [1998] 91 Comp Cas 361 (SC) and the same reads as follows (at page 368): When the court notices, that the complainant is absent on a particular day the court must consider whether the 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 another date due to any other reason. If the situation does not justify, the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must; therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.