SHASHI KANT SHARMA,J. - (1.) INSTANT appeal filed by complainant-appellant Mittal Book and Stationers, Durgapura, Jaipur is directed against the order dated 18th August, 2000 passed by the learned Civil Judge (Jr. Division) and Judicial Magistrate, 1st Class, Sanganer whereby a complaint filed by the appellant was dismissed.
(2.) THE relevant facts essential for the disposal of this appeal are as under : This appellant filed one complaint against respondent Mahendra Singh Solanki for the offence punishable under Section 138 of Negotiable Instruments Act. The lower Court took cognizance against the accused-respondent for the offence under Section 138 of Negotiable Instruments Act and accused appeared in the Court. As it was a summons case, so substance of accusation was read over to the accused. Accused pleaded not guilty and requested for the trial. Complainant examined himself and closed his evidence. Accused-respondent was examined under Section 313 Cr.P.C. on 7th July 2000 and case was fixed for 19th July, 2000 for defence evidence, on the day, defence evidence was not produced and on the request of the accused, again the case was posted for defence evidence on 4th August, 2000, on that day, due to some condolence, defence evidence could not be recorded and the case was adjourned for 18th August, 2000, for recording defence evidence, and on 18th August, 2000, complainant did not appear in the court but defence witness was present, therefore, the learned lower Court dismissed the complaint. Against that order, this appeal is filed. Record of the lower court was called for. Arguments heard. It is argued on behalf of the appellant-complainant that impugned order passed by lower court is absolutely illegal. It is contended that on the day, presence of the complainant was not necessary because prosecution witness was already examined and accused was already examined under Section 313 Cr.P.C. and case was posted for defence evidence, therefore, lower court should not have dismissed the complaint on the premise that complainant was not present. It is argued that judgment of Hon'ble Supreme Court reported in 1998(1) RCR(Crl.) 309 (SC) : 1998(1) SCC 687 (Associated Cement Company Ltd. v. Keshvanand) is relevant in this case.
(3.) NONE was present on behalf of the respondent-accused, therefore, arguments on behalf of respondent could not be heard.;