Decided on October 12,2007



- (1.) By this common order, I shall dispose of these two appeals, which have been preferred by the appellant against the impugned order dated 2nd September, 2006 passed by learned Metropolitan Magistrate whereby he acquitted the accused/respondent.
(2.) Brief facts leading to filing of these two appeals are that the case was fixed on 2nd September, 2006 for complainant's evidence. On that day, an application for exemption was made on behalf of the complainant on the ground that complainant was out of station. The learned MM observed that a number of last opportunities were granted to the complainant to lead evidence but the complainant failed to lead evidence and had been seeking frequent exemptions. The complainant had examined CW1 partly. The witness was to appear for cross examination on 2nd September, 2006. He did not appear. The learned MM closed the CE. Since there was no evidence produced in support of the complaint he acquitted the accused (respondent in these two appeals).
(3.) It is submitted by appellant that notice under Section 251 of Negotiable Instruments Act was issued to the respondent on 24th August, 2004 to which the respondent pleaded not guilty and the case was fixed for complainant's evidence on 26th February, 2005. On 26th February, 2005, the complainant led its evidence by filing affidavit in terms of Section 145 of the NI Act and offered himself for cross examination, as the advance copy of the affidavit had already been served upon the accused. However, the accused sought an adjournment on the ground that she had not been able to engage a counsel. Learned MM, in the interest of justice, adjourned the matter for cross examination of CW-1, subject to cost of Rs.100/- imposed on the accused and the matter was listed on 6th August, 2005. On 6th August, 2005, the complainant witness was unable to appear and the matter was listed for cross examination of CW-1 on 7th March, 2006. On 7th March, 2006, the appellant and respondent were present but counsel for the parties did not appear. The trial court adjourned the matter for 16th May, 2006 for cross examination of complainant's witness. On 16th May, 2006, due to the surgery of the elder brother of complainant's witness, the appellant sought exemption from the trial court, which was allowed and the case was listed for concluding complainant's evidence on 3rd July, 2006. On 3rd July, 2006, complainant's witness CW1 appeared and was partly cross examined by the counsel for the respondent. The remaining cross examination was deferred and the complainant's witness was directed to produce certain documents and the matter was listed on 2nd September, 2006. On 2nd September, 2006, the impugned order was passed on non appearance of the complainant's witness. It is submitted that complainant's witness had gone out of station in connection with an urgent domestic work and despite his best efforts he was not able to return to Delhi on 2nd September, 2006. However, the trial court without even considering the exemption application closed the complainant's evidence and acquitted the accused dismissing the complaint.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.