Decided on February 03,1999

VIPAN GUPTA Respondents


- (1.) JUDGMENT :- This acquittal appeal against the order of Sub-Registrar, Jammu, dated 28th May, 1998 passed in file No. 78 with the permission of this Court dated 16th Sept., 1998 has been admitted to hearing.
(2.) This appeal emanates from the criminal complaint filed under Section 138 of Negotiable Instruments Act against the respondent on 29th December, 1996. Parties were summoned. Accused-respondent filed an application for dropping of the proceedings. Petitioner filed his objections. Application was heard finally on 3rd Jan., 1998 and was posted for the judgment. Thereafter nobody appeared from 25th March, 1998 onwards. It appears from the interim order that the presiding officer was transferred. Finally the complaint was taken up for 28th May, 1998. Complainant was again absent. This order does not show as to whether the accused was present or not. However, the complaint was dismissed for non-prosecution and the accused was acquitted. Complainant-petitioner has come up with this appeal stating therein that when the case was heard regarding the application for dropping of the proceedings, an open date was given to the complainant, so he could not appear on a particular date.
(3.) The Court has dealt with the case under Section 247, Cr. P.C. The learned counsel for the appellant has taken me through this section and has contended that the Court could not have dismissed the complaint and acquitted the accused merely for the complainant being absent on that date. The learned counsel for the other side has contended that it was duty of the complainant to find out the date of hearing and to be present on that date failing which Magistrate was within his bounds to acquit the accused and to dismiss the complaint. He has relied on AIR 1959 Kerala 350 : (1959 Cri LJ 1322), State of Kerala v. Thomma Kochuthoma. The contention of other side that the complainant could have himself found out the date of hearing is not tenable. Here in this case the Kerala Authority (supra) which is cited I have gone through. It is not applicable in the present case. The Kerala Authority is regarding that the complainant had not presented himself but had written letter to the Magistrate asking for a date. Court held that the complainant could not have written a letter to the Magistrate, he should have taken pains in going to the Court and finding out the date. Here in the present case it is urged that the Magistrate has not exercised the discretion judicially. There was good reason for adjourning the case, so the accused could not have been acquitted. Secondly, personal attendance of the complainant was not necessary on that date, for this reason also his presence could have been dispensed with and further proceedings could have been taken in the case.;

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