KORATTY HIRE PURCHASE Vs. SATHISH S/O.BHASKERAN

JUDGEMENT

(1.) The appellant herein as the complainant initiated prosecution under Section 138 of the Negotiable Instruments Act on the strength of a dishonoured cheque for a sum of Rs.20,450/ -. Pursuant to the summons issued, the accused appeared and thereafter, the case was posted on several dates. Ultimately, it stood posted to 07.01.2011. On that day, the accused was represented. The court below, holding that the complainant was absent continuously and the case stood posted for hearing finally under Section 256(1) of the Cr.P.C., dismissed the complaint and acquitted the accused. This order is under challenge in this appeal.

(2.) In spite of service of notice on the first respondent, he has not appeared to contest the proceedings. Heard the learned counsel for the appellant. Since the appeal itself can be disposed of on the basis of the available records, lower court records are not awaited.

(3.) It is an admitted fact that the complainant was absent on the date of posting. The impugned order does not specifically state whether the counsel represented the complainant though, in the absence of a specific recording that the counsel was absent, it can safely be presumed that the counsel represented the complainant. In the appeal memorandum, the appellant had stated that the complainant was laid up due to illness and counsel for the respondent sought for an adjournment or even that the matter may be taken up after lunch. It is stated that in spite of the above, the Court proceeded with the proceedings. If there is nothing to substantiate that the complainant was laid up or that the counsel pleaded for taking up the matter after lunch, this averment remains uncontroverted due to the absence of the first respondent.