R MURALI Vs. D UBHAYAKUMAR

JUDGEMENT

(1.) THIS appeal against acquittal is preferred by the complainant in C. C. No. 309 of 2000 on the file of learned Judicial Magistrate No. V, Salem challenging the order dated 13. 10. 2000, dismissing the complaint filed by him on the ground of non-appearance in a case under Section 138 of the Negotiable Instruments Act.

(2.) THE learned counsel for the petitioner submits that in spite of his best efforts, the accused/respondent has evaded the receipt of the notice. The appeal itself relates 1o the year 2000. Hence, Mr. N. Doraisamy is appointed by this Court as Amicus Curiae. The learned counsel for the appellant undertakes to serve proper notice on the respondent by taking effective steps in order to make the respondent to appear for the trial.

(3.) A perusal of the records discloses that the learned Magistrate called the above said C. C. No. 309 of 2000 filed by the appellant/ complainant on 13. 10. 2000 and dismissed the complaint on the ground of non-appearance of the complainant. In this case, the learned magistrate has passed a mechanical order simply on the ground that the complainant was not present on the date of hearing either in person or by his pleader and acquitted the accused. The order of the learned Magistrate, on the face of it, is arbitrary and illegal.