MAJOR K MATHEW SCARIAH Vs. K E MATHAI

JUDGEMENT

(1.) THIS is an appeal against an order of acquittal. The facts are summarily as follows: The complainant/appellant herein filed a complaint before the Sub-Divisional Magistrate, Pooneri, against the respondent for an offence under 5ection 500, Indian Penal Code. On 29.6.1984, after 49 hearings, the learned Magisrate acquitted the accused/respondent herein under Section 256(1) of the Code of Criminal Procedure for the simple reason that the complainant was absent. The case of the complainant is that taking into account the facts that all his evidence had been adduced, that the accused was examined by the Court under Section 313, Criminal Procedure Code, and that the accused also adduced some evidence, the Court ought not to have acquitted the accused for the mere absence of the complainant. He added that he happened to be absent on that day for the reason that he had to rush to the High Court in order to be present in another case without the possibility of informing the trial Court in time.

(2.) IT was contended on behalf of the respondent that the complainant was found absent even on earlier occasions which the Court had condoned and that on this last occasion the Court was right in acquitting the accused in the absence of the complainant.

(3.) TAKING into account the stage reached in the matter and the interest manifested by the complainant in prosecuting the case for about three years and also taking into account the fact that on four previous sittings when the complainant was present the matter was adjourned for additional evidence of the accused, 1 do not think that the Magistrate acted judicially in acquitting the accused for absence of the complainant. He should have dealt with the case on merits. Therefore, the order of the Magistrate is found not justified, it amounts to evasion of duty and the same is set aside. The matter is remitted back to the trial Court for fresh disposal, after giving, due notice to both parties. The matter should be taken up very early and disposed of expeditiously.