JEEVANASRI SOUHARDA SAHAKARI NIYAMITHA Vs. SHARMILA BANU

JUDGEMENT

(1.) Appellant has preferred this appeal against the order dtd. 11/8/2023 passed in CC No.2261 of 2021 by the II Additional Civil Judge and JMFC at Sindhanur, by which order, the learned Magistrate had dismissed the complaint for default.

(2.) Heard the arguments on both sides.

(3.) Smt. Vijaya M Patil, learned Counsel appearing for the appellant, would submit that the complainant/appellant has filed a private complaint under Sec. 200 of the Code of Criminal Procedure against the respondent-accused for commission of offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881. The complaint was registered in PC No.56 of 2021 and the trial Court took cognizance for the offence. Accordingly, case was registered in CC No.2261 of 2021 and summons was issued to the accused. In response to the summons, accused appeared before the trial Court and subsequently got enlarged on bail. The Trial Court recorded the statement of accused under Sec. 313 of the Code of Criminal Procedure and thereafter, the case was posted for trial and the trial Court, referring to the decision of Hon'ble Apex Court in the case of INDIAN BANK ASSOCIATION v. UNION OF INDIA, treated the sworn statement of the complainant as the chief evidence of the complainant. Since the counsel for the accused has not filed any application to recall for cross-examination of PW1, Cross of PW1 was taken as 'nil' and the matter was posted for defence evidence. Subsequently, on an application being filed by the accused, the stage was recalled and the trial Court posted the matter for cross-examination of PW1. Thereafter, the Counsel appearing for the complainant filed interlocutory applications to recall the stage of cross-examination of PW1 in order to further chief- examine the complainant by producing certain documents. Accordingly, the trial Court allowed the interlocutory applications and posted the matter for further chief examination of PW1. At that stage, complainant and his counsel remained absent. On 11/8/2023, taking note of the fact that the complainant as well as his counsel remained absent, the trial Court dismissed the complaint for default.