SAJAIKUMAR Vs. T V VIJAYAN

JUDGEMENT

(1.) THIS appeal is filed by the complainant in C.C. No. 123 of 2002 on the file of the Judicial First Class Magistrate Court, Irinjalakuda against the order of acquittal of the first respondent herein under Section 256 Cr.P.C. dt.12.1.2004. That was a case filed by the complainant against the first respondent herein alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.40,000/- On 12.1.2004, the accused was acquitted under Section 256 Cr.P.C. on the ground that the complainant and his counsel were absent.

(2.) HEARD learned counsel for the appellant and the learned Public Prosecutor.

(3.) THE proceedings paper of the court below shows that on 29.4.2002 the complainant was present and his sworn statement was taken and summons was issued to the accused to appear on 27.2.2003. On 27.2.2003 the complainant and his counsel were absent and they applied and the case was posted to 12.1.2004. On 5.5.2003 the case was taken in the Adalat and the accused was absent and the complainant was present. On 12.1.2004 the accused was absent and he applied and that petition was allowed. But the complainant was absent and there was no representation and therefore the accused was acquitted under Section 256 Cr.P.C. From the proceedings paper it is clear that the accused never appeared before the court below and on 12.1.2004 the case was posted for appearance of the accused and not for evidence and therefore the presence of the complainant was not necessary and as such the learned Magistrate is not justified in acquitting the accused.