K.SANGAMESHWAR Vs. MD.CHAND PASHA

JUDGEMENT

(1.) THE present appeal is filed by the complainant under Section 378(4) Cr.P.C. aggrieved by the judgment dated 18.10.2006 passed in C.C. No. 411 of 2003 on the file of Judicial Magistrate of First Class, Tandur. The appellant/complainant filed a private complaint against the accused for an offence punishable under Section 138 of the Negotiable Instrument Act. On 11.10.2006 the Judicial Magistrate of First Class, Tandur passed the following order:

(2.) ON 18.10.2006 neither the complainant nor the accused were present before the Court and N.B.W. issued against the accused were still pending. Since the complainant did not comply with the order dated 11.10.2006, the learned Magistrate acquitted the accused. Aggrieved by the same, the present appeal is filed.

(3.) A perusal of the impugned order would show that the N.B.Ws. issued against the accused are pending till the said date. The learned counsel for the appellant mainly submits that the conditional order dated 11.10.2006 wherein the complainant was directed to get N.B.Ws. executed by the next date of hearing failing which the impugned order of acquitting the accused is illegal and erroneous. A perusal of the order would show that on 11.10.2006 and 18.10.2006, neither the complainant nor the accused were present before the Court. When the N.B.Ws. issued against the accused were still pending, the question of complainant being present before the Court on those dates is of no use. His absence on that day does not in anyway affect the progress of the case. The said issue came up for consideration before this Court on number of occasions. In C.K. Sivaraman Achari v. D.K. Agarwall and another (1) : 1978 Crl.L.J. 1376, the Kerala High Court held as under: