C RAJASEKAR Vs. S SASIKUMAR

JUDGEMENT

(1.) THE appellant herein is the complainant in C.C.No.657 of 2005 on the file of the learned Judicial Magistrate, Thiruchengode. He had preferred this appeal against the order passed by the learned Magistrate acquitting the accused under Section 257 of the Code of Criminal Procedure for the reason that the complainant was absent on that date. THE accused was charged for an offence under Section 138 of the Negotiable Instruments Act.

(2.) AFTER the appeal being admitted, notice was ordered to the respondent/accused. But, as the notice from Court could not be served to the accused, private notice was permitted to be taken by the appellant. The learned counsel for the appellant, Mr.N.Manokaran, sent a notice on 28.06.2007. A proof affidavit along with the postal acknowledgement, which is acknowledged by the accused himself, has been filed.

(3.) THE learned counsel for the appellant pointed out that though on the earlier two occasions, when the case was posted for trial, he had appeared before the learned Magistrate, he was not examined as a witness. THEre is no progress in the case. THE learned counsel for the appellant also relied on the decision of the Honourable Supreme Court in Associated Cement Co. Ltd. -vs- Keshvanand (1998) 1 Supreme Court Cases 687, wherein it was held as follows:-"What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. THE section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum.".