CHANDRAN A.P. Vs. VELAYUDHAN E.

JUDGEMENT

(1.) This is an appeal preferred by the complainant in C.C. No. 653/2000 on the file of the Judicial Magistrate of the First Class V. Kozhikode assailing an order of acquittal under Section 256 (1) of the Code of Criminal Procedure. The appellant prosecuted the 1st respondent before the trial court alleging offence under Section 138 of the Negotiable Instruments Act. The complaint was filed on 8-6-2000. On 6-1-2003, when the case came up for evidence, the appellant was absent. He applied to excuse his absence stating that he was laid up with fever. Rejecting that petition, the complaint was dismissed as above. I have gone through the records. It is seen that in between the date of filing and the date of disposal, the case was adjourned on ten occasions. The complainant was present through out the posting dates except on one occasion. That fact would show that the appellant was very vigilant in prosecuting the case. Though it is stated in the petition to excuse the absence that the complainant was laid up with fever, without assigning any reason, the petition was dismissed. There is no finding that what is stated in the petition is not correct. The order sheet of the trial court would show that on previous occasions the case was adjourned not at the instance of the appellant. In the above circumstance, I find that the order acquitting the 1st respondent in the absence of the appellant for he being laid up due to fever is a miscarriage of justice. The order impugned lacks prudence. The trial court omitted to take note of the ground realities and hardship of the litigants, especially that of the complainant to appear on all posting dates though the case would not be taken up. It is not sustainable and liable to be interfered with.