In a criminal case pertaining to dishonour of cheques filed before the VII Metropolitan Magistrate, Chennai, the Madras High Court has ruled that if the complainant was not present before the Magistrate Court, it was incumbent upon the presiding officer to issue notice to the complainant, and without issuance of such notice, adopting procedure of dismissing the complainant under Section 256(1) of CrPC was not appreciable.

Hearing an appeal from Shalimar Paints Ltd., Chennai, against an order dated 2-12-2006 of dismissal for default, Mr. Justice S. Palanivelu held that the Magistrate should have adjourned the case to some other date to enable complainant to be present before Court, and meanwhile, necessary notice should have been sent to complainant. In these circumstances, the High Court found that legal grounds were available for allowing this appeal.

The appellant had lodged a complaint before Magistrate on the strength of a dishonoured cheque against respondent, Lakshmi Narasimhaswamy Steels & Chemicals, Cuddalore, under Section 138 of Negotiable Instruments Act. The Magistrate dismissed the complaint acquitting accused for non-appearance of complainant. Counsel for appellant, Mr. M. Aravind Subramaniam, quoting a decision of the High Court reported in R Sekar vs S. Rajendran [2004(1) CTC 689] contended that the Magistrate should have adopted a proper procedure, and non-observance of such procedure would tantamount to not rendering proper justice to parties.

The Judge ruled that the above decision could throw much light on the subject. If complainant was not present before court, it was incumbent upon the presiding officer to issue notice to complainant. Adoption of procedure of dismissing complaint was not at all appreciable. The appeal was allowed.