MARUTI PANDURANG PATIL Vs. SHALINI BABURAO MHAISALKAR

JUDGEMENT

(1.) HEARD advocate for the applicant. By order dated 12th September 2008 this Court while issuing notice directed that if the leave is granted, the appeal will be finally disposed of at the stage of admission. The office endorsement shows that the notice has been duly served. The learned counsel for the applicant has tendered on record a certified copy of the Roznama of the case. A case is made out for grant of special leave to prefer an appeal. Leave is granted. Appeal is admitted. In terms of the order dated 12th September 2008, the appeal is taken up for final disposal.

(2.) THE applicant is the complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). By the impugned order dated 30th October 2007, the learned Judicial Magistrate, First Class has acquitted the first respondent of the offence punishable under section 138 of the said Act of 1881. The learned Judge observed that the applicant-complainant filed an affidavit in lieu of examination in chief but he did not remain present on the date fixed for cross examination. The learned Judge noted that on certain dates, both the applicant and the first respondent remained absent and, therefore, the applicant could not be cross examined. He observed that as the applicant has not offered himself for cross examination, the affidavit in lieu of examination in chief tendered by him cannot be treated as evidence and in absence of any evidence, the first respondent was required to be acquitted.

(3.) HENCE, I pass following order :-