M.Total Instruments Solutions v. M/S.Ashtapadi Foundation (Trust)

J U D G M E N T The appellant as complainant filed a private complaint in S.T.C.No.985 of 2017 for offence under Section 138 of the Negotiable Instruments Act against the respondents. The trial Court, by judgment dated 31.08.2021 dismissed the complaint for non prosecution, against which, the present appeal filed.

¶2This Court, on 09.07.2024, admitted the appeal and ordered notice to the respondents. At this stage, it would be appropriate to extract the order passed by this Court on 04.11.2025, followed by an order passed on

02.12.2025. 'Proceedings dated 04.11.2025

: "It is seen that this Court, on 02.01.2025, had directed the learned Chief Judicial Magistrate, Coimbatore, to effect service of notice through the jurisdictional police. Pursuant to the said direction, the Chief Judicial Magistrate, in D.No.638 of 2025, dated

25.02.2025, had sent a notice to the respondent to be served through the District Police Chief, Ernakulam (City).

¶2The District Police Chief, Ernakulam, by communication dated 06.03.2025 respondents to the Chief Judicial Magistrate, Coimbatore, informing that the respondent's address falls within the jurisdiction of the District Police Chief, Kollam Rural a copy marked to the District Police Chief, Kollam Rual for necessary action. This communication was received by the Chief Judicial Magistrate, Coimbatore, on 18.03.2025. Thereafter, there is nothing to indicate, what further action taken, in effect the case pending without any progress.

¶3The petitioner filed a private complaint under Section 138 of the Negotiable Instruments Act in S.T.C. No.985 of 2017. The case was periodically adjourned, and summons issued to the respondent/accused on 24.04.2017. On 11.05.2017, it is recorded summons sent by RPAD served to the accused on 20.04.2017, since the accused was absent, bailable warrant issued and remained pending from 11.05.2017 to 13.08.2019. On 13.08.2019, the accused appeared, and warrant was recalled. The case was adjourned to

05.11.2019. Again, on 05.11.2019, the accused (A1 and A2) failed to appear, and thereafter, the case was periodically adjourned.

¶4Due to the Covid-19 pandemic, the case was adjourned periodically from 28.05.2020 till 07.05.2021. Thereafter, on

22.07.2021, when the case was called, complainant was not present, since both the complainant and the accused were absent, the case adjourned to 31.08.2021. On that date, i.e., 31.08.2021, there was no representation on behalf of the complainant and no response to the notice to the complainant, and after granting some time, the complaint was dismissed for non-prosecution. Aggrieved by the said dismissal, the present appeal filed.

¶5In view of the above, the learned Chief Judicial Magistrate, Coimbatore, is directed to send a report regarding the follow up steps taken with the District Police Chief, Kollam Rural, to ascertain the status of service of summons.

¶6Post the case on 11.11.2025.

¶7The Registrar (Judicial) is directed to obtain a report and submit the same before this Court without any further delay." Proceedings dated 02.12.2025: This Court, on 04.11.2025, had called for the report from the learned Chief Judicial Magistrate, Coimbatore to find out the steps taken in serving summons to the respondents/accused. Pursuant to the same, the learned Chief Judicial Magistrate, Coimbatore in D.No.3028/2025 dated 07.11.2025 had sent a report, which reads as follows:

¶2It is seen that all steps were taken to serve notice to the respondents but respondents are not available in the address.

¶3In view of the above, Registry is directed to print the name of the respondents in the cause-list and list the case on 03.12.2025."

¶3On 03.12.2025, despite respondents' name printed in the cause-list, none appeared. Hence, this Court appointed Ms.C.Bharathi as Legal Aid Counsel for the respondents/accused. The order dated 03.12.2025 is extracted hereunder: "The learned counsel for the appellant/complainant is present.

¶2Pursuant to the order passed by this Court on 02.12.2025, the name of the respondents have been printed in the cause list, but there is no representation for the respondents today either in person or through counsel. In view of the same, this Court appoints Ms.C.Bharathi,

Enrollment

No.MS 3428/2024

(Cell No.9361248738) as Legal Aid Counsel for the respondents/accused.

¶3Registry is directed to print the name of Ms.C.Bharathi, learned Legal Aid Counsel for the respondents in the cause-list.

¶4The learned counsel for the appellant is directed to serve appeal papers to the learned Legal Aid Counsel for the respondents.

¶5Post the case on 17.12.2025."

¶4(i) The contention of the appellant/complainant is that the appellant deals in purchase and sale of equipments and instruments to Engineering, Polytechnic and educational institutions. The appellant/complainant is the Proprietor of M/s.M.Total Instruments Solutions and he is looking after the day-to-day business, and appointed a Power of Attorney to prosecute the complaint. The first respondent is the Trust running educational institution (Pinnacle College Trust Office) and second respondent, Principal of Pinnacle School of Engineering Technology, Areeplachy Post, Karavaloor, Anchal, Kerala, who placed orders and purchased equipments for college lab by purchase orders dated 13.02.2015 to 13.01.2016 for a total value of Rs.19,13,475/- covered by invoices. The equipments and instruments supplied on credit basis covering several invoices starting from 29.03.2015 to

30.04.2016. The machineries and equipments supplied accepted and delivery taken by the second respondent, thereafter part payments of Rs.2,50,000/- on

23.07.2015 and Rs.5,00,000/- on 03.11.2015, in total, Rs.7,50,000/- paid.

(ii) For the balance outstanding amount and liability, the second respondent issued two cheques, viz., cheque No.201227 dated 11.06.2016 for a sum of Rs.3,52,644/- and cheque No.201257, dated 29.06.2016 for a sum of Rs.4,95,646/-. Both cheques drawn on Federal Bank, Ernakulam Branch. Thereafter, on the instructions of the appellant, cheques presented. One cheque returned for the reason 'Funds Insufficient' and the other cheque returned for the reason 'stop payment'. Thereafter, second respondent requested the appellant to represent the cheques. The cheques were represented on 07.09.2016 and on 08.09.2016 again it was returned for the reason 'stop payment'. Thereafter statutory notice issued on 03.10.2016. The respondents received notice but neither paid the cheque amount nor sent any reply, following the statutory procedure complaint filed on 01.12.2016. The originals verified on 22.02.2017 and the complaint was taken on file. Thereafter summons issued to the respondents and they have not responded immediately and the case was periodically adjourned.

(iii) On 11.05.2017, service of summons through RPAD recorded and found accused/respondents absent and bailable warrant issued. Thereafter from 18.07.2017 to 13.08.2019, the case was periodically adjourned for 10 hearings for execution of bailable warrant, the complainant was present and finally on 13.08.2019, the case was adjourned to 05.11.2019. In the meanwhile, on 13.09.2019, the accused appeared before the trial Court, filed advance hearing petition and recall warrant petition. On 13.09.2019, the bailable warrant recalled and the case was adjourned to 05.11.2019. Thereafter, the case was adjourned for preparation of copies for 5 hearings from 05.11.2019 to 08.04.2020.

(iv) On 08.04.2020, due to Covid-19, on the directions of Principal District Judge, Coimbatore, the functioning of the Courts got disrupted and there was restrictions for the litigants to appear before the Courts and the case was periodically adjourned. On 10.11.2020, it is recorded that both the appellant and the respondents not appeared and thereafter on 29.12.2020 and

12.02.2021, petition for dispensing the presence of the complainant filed, subsequently on 09.04.2021 finding no representation for the complainant, notice dated 16.04.2021 is said to have been issued to the complainant for his appearance and the case was adjourned to 07.05.2021. On 07.05.2021, the second spell of Covid-19 surfaced and the case was adjourned from

07.05.2021 to 22.07.2021 finally finding no representation for the complainant, on 31.08.2021, the impugned order passed recording despite service of notice to the complainant on 16.04.2021, no representation for the complainant and dismissed the complaint.

¶5The learned counsel for the appellant submitted that in this case the appellant is a small time entrepreneur, he supplied goods to the tune of Rs.19,00,000/- and the respondent/accused admitted the receipt of goods and paid a part sum of Rs.7,50,000/-, for the balance amount in discharge of liability, he issued the cheques. There is no dispute with regard to the supply and receipt of goods. The appellant filed invoices confirming supply of goods in the complaint. He further submitted that substantial and real justice can be done only after full-fledged trial, not by short-circuiting the trial on technical grounds which will amount to denying of justice to the appellant/complainant.

¶6Further, in support of his contention, the learned counsel relied upon the judgment of Hon'ble Apex Court reported in (2022) 3 SCC 117 and

(2023) 4 SCC 326, wherein the Hon'ble Apex Court had given waiver for limitation during the period from 15.03.2020 till 28.02.2022 and further for the point that proviso to Section 256(1) of Cr.P.C. enables the Magistrate to dispense with the attendance of the complainant and proceed with the case where the complainant is represented by a Pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary. The case is periodically adjourned for preparation of copies and there is no requirement that personal attendance of the complainant, and the case was not adjourned only for the reason complainant not appeared and trial is getting stalled. Hence, prayed for allowing this appeal.

¶7The learned counsel for the respondents strongly opposed the appellant's contention and submitted that as per Section 256 of Cr.P.C., it is within the discretion of the Magistrate to find out whether the absence of the complainant is genuine or not. In this case, the appellant/complainant though initially showed some interest in prosecuting the case, appeared before the trial Court and thereafter the case was adjourned for preparation of copies, but copies not made ready and furnished to the respondents. The respondents, hailing from the State of Kerala, was travelling all the way from Kerala and appearing before the trial Court covering considerable distance, that too during the COVID period. However, the complainant after filing the complaint, left it midway and not prosecuted the case, due to which, the respondents suffered harassment. It is for the appellant/complainant to be vigilant and the law comes to the aid only of the diligent and not others. On nine hearing dates, neither the appellant/complainant nor his counsel present before the Court. A speedy trial is a fundamental right of the accused and after giving sufficient time and opportunity and serving notice to the appellant/complainant, the complaint dismissed.

¶8In support of her contention the learned counsel relied upon the decision of the Hon'ble Apex Court reported in AIR 2008 SC 2066, wherein it is held that the conduct of the complainant gives immense significance. The complainant cannot file a complaint and keep it pending for an indefinite period. Considering all these aspects and also finding that speedy trial is a fundamental right, dismissed the complaint. Further the Hon'ble Apex Court observed that the High Court failed to take into consideration that in dealing with an order of acquittal, the principal of law required to apply is that, if two views are possible, a judgment of acquittal should not be ordinarily interfered with. In this case, it is an order of acquittal passed after finding that complainant not interested in pursuing the complaint and left it dormant. Hence, prayed for dismissal of the appeal.

¶9Considering the submissions made on either side and on perusal of materials, it is seen that in this case complaint filed along with supporting documents. All documents verified, thereafter complaint taken on file and summons issued. After receipt of summons, the respondents failed to appear before the trial Court and thereafter bailable warrant issued and the case was periodically adjourned. Finally on 13.09.2019, the respondents/accused appeared, filed advance hearing petition and warrant recall petition. Thereafter the case was posted for preparation of copies.

¶10It is to be noted that it is a private complaint. The normal procedure in private complaint is that, a complaint is taken on file after verifying whether sufficient copies for the accused are presented along with complainant, thereafter only complaints entertained. In this case, adjourning the case for preparation of copies does not arise. In any event, the case was adjourned for preparation of copies and the absent period of the appellant/complainant was predominantly during the period of COVID, when there was restrictions in functioning of the Courts. It is seen that on

09.04.2021, notice dated 16.04.2021 sent for complainant appearance on

07.05.2021 and from 07.05.2021, the second spell of COVID surfaced and restrictions placed in functioning of Courts. Thus the notice in D.No.854/2021 dated 16.04.2021 lost its significance and purpose. Thereafter the case adjourned and finally on 31.08.2021, referring to the notice dated

16.04.2021, dismissing the complaint is not proper. In all fairness, fresh notice could have been issued to the appellant/complainant. Further on

31.08.2021, the case was posted for appearance of the respondents/accused to receive copies and not for any other reason.

¶11Admittedly, trial is yet to commence and the case was not adjourned for the absence of the appellant/complainant. Dismissing the complaint under Section 256(1) of Cr.P.C. amounts to short circuiting the proceedings and not allowing the case to reach its logical end. Only after a full-fledged trial, the real and substantial justice is delivered.

¶12In view of the above, the impugned order dated 31.08.2021 passed in S.T.C.No.985 of 2017 by the learned Judicial Magistrate No.III, Coimbatore is set aside and the complaint in S.T.C.No.985 of 2017 is restored on the file of Judicial Magistrate Court No.III, Coimbatore. The prosecution shall now proceed from the stage, when the order of acquittal/dismissal of the complaint was passed.

¶13It is seen that in this case, the complaint was filed in the year 2017. Further the respondents/accused are evading the service of notice, further, despite notice served, not appeared before this Court. The respondent, an educational institution cannot have such an approach. For this reason, in the earlier part of the order the steps taken by the police reproduced. Considering this fact, the Trial Court to issue notice, if required coercive action can be taken. Hence, the trial Court is directed to give priority and preference in taking the complaint to reach its logical end without giving long adjournments and ensure that the trial is completed preferably within a period of six months from the date of receipt of a copy of this order.

¶14With the above directions, the Criminal Appeal is allowed.

¶15This Court is very much appreciative for the Legal Aid Counsel, Ms.C.Bharathi for her thorough preparation, research and making effective submissions. The Tamil Nadu State Legal Services Authority shall pay the remuneration to Ms.C.Bharathi, Legal Aid Counsel.

03.02.2026 Index : Yes / No Internet : Yes/No Speaking / Non-speaking order rsi To The Judicial Magistrate No.III, Coimbatore.

M.NIRMAL KUMAR, J. rsi CRL A No.717 of 2021

03.02.2026

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03-02-2026 CORAM THE HONOURABLE MR JUSTICE M. NIRMAL KUMAR CRL A No. 717 of 2021 M.Total Instruments Solutions, M.Mazkure Alam, S/o. C.A.Mohammed Ghouse, No.140-B, Venkatasamy Road, New Siddhapudur, Coimbatore – 641 044. Rep by its Power of Attorney Agent, A.Abuthahir, S/o. Amsa, No.46-A, Kallarai Cheri Street, Chithannapuram, Podanur, Coimbatore – 641 023. Appellant/Complainant Vs 1. M/s.Ashtapadi Foundation (Trust) Pinnacle College Trust Office, Syed Tower, IInd Floor, Azard Road, Kaloor, Ernakulam – 682 017. 2.The Principal, Pinnacle School of Engineering Technology, Areeplachy Post, Ayanicode, Karavaloor, Anchal, Kerala – 691 333. Respondents/Accused PRAYER : Criminal Appeal filed under Section 378 of Cr.P.C. praying to set aside the order of acquittal passed in S.T.C.No.985 of 2017, on the file of Judicial Magistrate Court No.3, Coimbatore, dated 31.08.2021 for the offence punishable under Section 138 of the Negotiable Instruments Act, and by allowing the appeal and to restore the private complaint on file. For Appellant : Mr.Ma.P.Thangavel For Respondents : Ms.C.Bharathi Legal Aid Counsel