VINOD SEQUIERA Vs. BAHUNJI ALIAS G H HASSAN

JUDGEMENT

(1.) THE appellant has challenged the Order of dismissal of his complaint for non-prosecution filed against the respondent for the charge under Section 138 of the negotiable Instruments Act (hereinafter referred to as "the Act" ).

(2.) THE facts relevant for the purpose of this appeal are as under : the appellant filed the complaint under section 200, Cr. P. C. against the respondent for taking action under Section 138 of the Act alleging that the respondent borrowed loan of rs. 60,000. 00 in May 2003 and in turn issued a cheque dated 30-8-2003 for an amount of rs. 60,000. 00 towards the repayment of the debt. The cheque was submitted to the bank for encashment and it returned with an endorsement of insufficient funds. Later the appellant issued notice and though the notice was served to the respondent the amount was not paid. In the circumstances, the appellant approached the Trial Court with the complaint on the above said facts.

(3.) AFTER taking cognizance, summons was issued to the respondent, who appeared through a counsel and on 27-11-2007 both the accused and the appellant were absent. Exemption petition was filed for the accused and an application was filed on behalf of the complainant under Section 256, Cr. P. C. to dispense with his presence. The said application came to be allowed on payment of costs of rs. 200. 00 and the matter was adjourned to 27-11-2007. On which day the accused was absent. The exemption petition for the accused was filed and so also the appellant was absent and an application under Section 256, Cr. P. C. was filed for dispensing with his presence on that day. The learned Magistrate perused the application and considering the fact that the cost ordered on 21-11-2007 was not paid and holding that the appellant was not interested to prosecute the case rejected the application and dismissed the complaint for non-appearance of the complainant and for non-prosecution. Aggrieved by the said Order, this appeal has been filed.