JAYASEELAN Vs. BELLAN

JUDGEMENT

(1.) THE appellant herein is the complainant in C.C.No.392 of 2002, on the file of the Judicial Magistrate, Udagamandalam and the respondent herein is the accused in the said case. THE appellant herein filed a private complaint under Section 138 of the Negotiable Instruments Act against the respondent herein. On 29.07.2003, as the complainant was not present before the Court, the learned Magistrate acquitted the accused under Section 256 Cr.P.C. Challenging the said acquittal, the complainant had preferred this criminal appeal.

(2.) THE learned counsel appearing for the appellant submitted that the complainant has been examined as P.W.1 on 28.04.2003 and he was also present on several hearings. But the accused was absent for several hearings. Even non-bailable warrant was pending against the accused on 26.06.2003. THE non-bailable warrant issued against the accused also was recalled on his surrender and he was questioned under Section 313 Cr.P.C. THEreafter, it was posted for examining the defence witnesses. THE learned counsel for the appellant further submitted that on 24.07.2003, the complainant was absent since he had come to Madras for attending a ceremony and he was absent even on 28.07.2003. A petition was filed for the absence of the complainant. But the learned Magistrate posted the case on the next day, i.e., on 29.07.2003, even on that day, as the complainant was in Madras, he did not go to Udagamandalam for appearing before the court. Even on that day, an application was filed under Section 256 Cr.P.C seeking condonation for the non-appearance of the complainant, but the learned Magistrate dismissed the said petition and acquitted the accused.

(3.) A certified copy of the docket order of the case is filed in the typed set. As per the docket entry, on 28.04.2003, the complainant was examined as P.W.1 and the case was adjourned to 30.04.2003. But on 30.04.2003, the accused was absent and for the subsequent hearings also, the accused was absent. 16.05.2003, non-bailable warrant was issued against the accused and it was recalled on 27.06.2003. The petition filed by the accused to recall P.W.1 was also allowed on 04.10.2003 and the case was posted to 11.07.2003 for cross examination of P.W.1. On 11.07.2003, both the complainant and the accused had been present, but the case had been adjourned to 24.07.2003, but it is not known as to why P.W.1 was not cross examined on that day. On 24.07.2003 and 28.07.2003, the complainant was absent and a petition was filed on behalf of the complainant and it was also allowed. After allowing the petition filed for the absence of the complainant on 28.08.2003, the case has been posted to 29.08.2003. Even on that day, the complainant was absent and therefore the learned Magistrate had passed an order under Section 256(3) Cr.P.C. The question now arises for consideration is whether the order passed by the learned Magistrate is legally sustainable. It appears that from 13.12.2002, the complainant had been appearing before the Court for several hearings and he was also examined as P.W.1. While so, the learned Magistrate need not have invoked the provision under Section 256(3) Cr.P.C. Further as per the certified copy of the order furnished to the appellant, it is mentioned as follows: