D S BEDI Vs. P JAYAVELU

JUDGEMENT

(1.) THE appeal is filed against the order of the IX Metropolitan Magistrate, Saidapet, Chennai dismissing the complaint filed by the complainant and acquitting the accused for non-appearance of the complainant on 24.1.2007.

(2.) IT is contended that the trial Court has not followed the principles laid down by the Apex Court in the decision reported in Associated Cement Company Limited v. Keshvanand AIR 1998 SC 596 : (1998) 1 SCC 687 and has failed to see that the complainant and has counsel were appearing promptly on several hearing dates, whereas the accused was not present, which necessitated the adjourning of the case. The appellant has produced the docket entries in C.C.No. 5780 of 2003. By referring to the same, learned counsel for the appellant submitted that except on 27.10.2006, 29.11.2006 and 4.1.2007, the complainant had been attending the Court without fail. He further submits that form 14.6.2005, the case was being adjourned repeatedly for the cross examination of P.W.1 the complainant but the accused was going on taking time on one pretext or the other. When that being so, when the complainant was absent as stated above on three occasion, the Court below ought to have given notice to him before passing the order dismissing the complaint and acquitting the accused.

(3.) IF the facts of the case on hand are considered in the light of the above said observations of the learned Judge, the failure on the part of the Court below in issuing notice to the complainant before dismissing the complainant has resulted in miscarriage of justice. As pointed out by the learned Judge, at this stage, the accused in C.C.No. 5780 of 2003 need not be heard and hence the above appeal is allowed for the above said reasons.