M DHANDAPANI Vs. HEMALATHA

JUDGEMENT

(1.) THE Criminal Appeal arises out of the judgment of acquittal of the respondent/accused by invoking Section 256 Cr.P.C. in C.C.No.495 of 2003 on 25.08.2006 by the learned Judicial Magistrate No.VI, Coimbatore.

(2.) THE appellant herein as a complainant filed a complaint against the respondent/accused under Section 138 of Negotiable Instruments Act, stating that the complainant is carrying on the business of dealing in properties as Real estate agent. THE respondent/accused herein approached the complainant to find suitable buyer for the vacant site stood in the name of her son and the accused also agreed to pay Rs.21,000/- as commission charge for the service rendered by the appellant herein. THE appellant finalised the property as requested by the respondent/accused and on 15.11.2002, the sale deed was registered. Subsequently, the accused issued a cheque dated 10.01.2003, bearing No.714909 for Rs.21,000/- drawn on Indian Bank, Stock Exchange Buildings, Coimbatore, in favour of the appellant/complainant. THE said cheque has been presented in the Bank for encashment on 17.02.2003, which was returned vide memo dated 18.02.2003 on the ground that "insufficient funds". THE factum of dishonour of cheque was informed to the complainant by the Bank on 19.02.2003. Hence, the appellant/complainant issued a legal notice to the respondent/accused on 20.02.2003. THE accused received the same, but he neither give any reply nor repaid the amount due. Hence, the appellant/complainant filed a complaint against the respondent/accused under Section 138 of Negotiable Instruments Act.

(3.) IT is further submitted by learned counsel for the appellant/complainant that appearance of the appellant is not necessary on the hearing dates, since N.B.W. is pending against the respondent/accused. After appearance of the accused, the appellant will get into the witness box and depose against the accused. That factum has not been considered by the learned trial Judge. The trial Court had taken it as a chance of non appearance of the complainant and disposed of the complaint by invoking Section 256 of Cr.P.C. He relied upon the following judgments reported in (i) (1998) 1 SCC 687 (Associated cement Co. Ltd. v. Keshvanand) and (ii) 2004 (1) CTC 689 (R.Sekar v. S.Rajendran) and submitted that the acquittal order passed by the trial Court in favour of the accused, due to non-appearance of the complainant, is not proper and the discretion is not properly exercised. Hence, he prayed for setting aside the order and the matter may be remitted back to the learned Judicial Magistrate's Court No.VI, Coimbatore, to dispose of the case on merits after giving opportunity to both sides.