SHAMEER Vs. SUNITHA NAZAR

JUDGEMENT

(1.) The appellant is the complainant in S.T.No.1609 of 2006 on the files of the court below. The appellant filed a complaint against the first respondent herein before the court below alleging offence under section 138 of the Negotiable Instruments Act. The court below, as per order dated 23.8.2007 m S.T. No.1609 of 2006, acquitted the accused under Sec. 256 Crimial P.C., 1973 stating that there was no representation for the complainant on that day. Aggrieved by the said order, this appeal has been filed after obtaining special leave from this court.

(2.) Heard.

(3.) It has been submitted by the learned counsel for the appellant that the order of the court below cannot be sustained as the presence of the complainant on that day was not at all necessary for the progress of the case. It is stated in the order impugned that the complainant was not present before the court below for evidence even after repeated directions. However, the proceedings of the court below would show that even the plea of the accused was not recorded. This would show that the court below passed the order impugned without applying the mind. The case could be posted for evidence only after recording the plea of the accused. It also appears from the proceedings of the court below that the accused did not even appear in person before the court below even though the accused had appearance before the court through the pleader. Since the plea of the accused was not recorded, the presence of the complainant was not necessary on 28.2007 for the progress of the case. For the said reason, the order impugned cannot be sustained and consequently, I set aside the same.