FALLARY ENTERPRISES Vs. SANDIP ENTERPRISES

JUDGEMENT

(1.) This Appeal is filed challenging the order dated 4-4-2009 passed by the learned J.M.F.C., Margao, by which order the application for exemption from appearance filed by the Appellant who is the original complainant came to be rejected. Consequently, the evidence of the complainant came to be closed and the complaint was dismissed for non-prosecution, resulting in acquittal of the Respondent herein i.e. the accused.

(2.) The complaint has been filed for dishonour of the three cheques being cheque No. 2901 for Rs. 30,000/- dated 17-10-2003, cheque No. 3722 for Rs. 45,000/- dated 5-11-2003 and cheque No. 3723 for Rs. 44,655/- dated 20-11-2003. The said complaint was numbered as Criminal Case No. 5/N/2004. The records of the said Criminal case were called from the Court of the learned J.M.F.C., Margao. The Roznama discloses that the complainant has been absent on numerous dates on which the said compliant was kept for recording of evidence of the complainant. On 2-7-2007 the learned J.M.F.C. adjourned the compliant as and by way of last chance to the complainant. As indicated above, the Roznama indicates that even thereafter the complainant was seeking time on some ground or the other. Lastly, the exemption was sought by the complainant on 4-4-2009 when the complaint was kept for recording of evidence of the complainant. The exemption was sought by the complainant by filing an application in that behalf which came to be rejected by the learned J.M.F.C. by the impugned order dated 4-4-2009.

(3.) I have heard the learned Counsel for the parties. Learned Counsel for the Appellant Mr. Silva submitted that the complainant was present for a whole session on 5-2-2009 which was the date earlier to the date on which the complaint has been dismissed for default. However, on the said day for want of time the Court did not take up the said criminal case. Thereafter on 21-3-2009 the complainant could not remain present and on 4-4-2009 the complainant had filed an application for exemption which came to be rejected. Learned Counsel for the Appellant submitted that the said absence of the complainant was in view of the fact that the accused was making payments in instalments of Rs. 5000/- and, therefore, the complainant did not feel the necessity of remaining present on the dates when the said complaint was kept for recording of his evidence.