(1.) THIS appeal is directed against the order dated 17.03.2009 of the learned Judicial Magistrate, 1st Class, Kamrup, Guwahati, passed in CR Case No. 1757/2008, dismissing the complaint that was filed by the appellant u/s 138 of the N.I. Act. For a ready reference, the impugned order is quoted below: -
(2.) WHILE Mr. A.K. Purakayastha, learned counsel for the complainant/appellant referring to the grounds urged in the appeal, submits that the complainant was prevented from appearing in the Court on the date of the impugned order, Mr. B. Talukdar, learned counsel representing the respondent submits that as will be evident from the impugned order itself preceded by the earlier orders. There was no sufficient reason for non appearance of the complainant/appellant in the proceeding. According to him, the impugned order is not liable to the interfered with. He further submits in reference to the decision of this Court Chief Executive Officer -vs - Tenzing Gopy Lama and others, 2008 4 GauLT 707 that the appeal against the order of dismissal of the complaint is not maintainable and at best the complainant/appellant may be entitled to file a 2nd complaint, subject, however, to the law of limitation etc.
(3.) IN Tenzing Gopu Lama , it was held that no appeal would lie against dismissal of complaint and acquittal of the case. Said view has been taken in reference to the Apex Court's decisions discussed in the judgment. In paragraphs 24 and 29 of the said judgment, it has been held thus: -