Sri Javarilal Mandot vs Sri B.G. Nagaraj Rao

A.S. Pachhapure, J.—The Appellant has challenged the order of acquittal dated 12.05.2006 acquitting the Respondent for the charge u/s 138 of N.I Act,

Appellant filed a complaint u/s 200 of Code of Criminal Procedure, before the trial court to initiate action for the offence punishable u/s 138 of Negotiable Instruments Act wherein the Respondent had issued a cheque for Rs. 70,000/-, dated 16.10.2003 and on presentation of the said cheque it returned with endorsement of insufficient funds. A notice was issued which was not complied. Hence a complaint came to be filed for the aforesaid offence.

After the appearance of the Respondent, the matter was posted for evidence. Appellant was examined-in-chief and ultimately it came to be adjourned on different dates aft the Appellant was absent and there was no representation. On 12.05.2006 when the matter was posted as a last chance, for the absence of the Appellant and the counsel, the complaint came to be dismissed by discarding the evidence of PW.1 recorded by way of examination-in-chief. Aggrieved by the said order, present appeal has been filed.

I have heard the learned Counsel for both the parties.

As could be seen from the records, the Appellant seems to be physically handicapped person. The counsel for the Appellant seeks an opportunity to complete the evidence of the complainant to substantiate justice and in the circumstances sought far allowing of the appeal. Dismissal of the complaint for default will not render justice to any of the parties. If the matter is heard on merit by recording the evidence the Trial Court can pass appropriate orders depending upon the evidence. It is no doubt true, that there is inordinate delay in keeping the Appellant present before the Court for cross-examination, but the said delay can be compensated by awarding exemplary costs.

Taking into consideration the delay that had occurred and the fact that the Appellant is physically handicapped person, interest of justice would be met in the case if an opportunity in give to the Appellant to produce his evidence before the Trial Court by awarding exemplary costs. In the circumstances, I proceed to pass the following:

ORDER

i) The appeal is allowed, on costs of Ra. 7,230/-

ii) The order of acquittal dated: 12.05, 2006 is set aside.

iii) The matter is remitted back to the Trial Court to give an opportunity to the Appellant with a direction to record the evidence of the complainant and proceed on with the case in accordance with law.

iv) As the matter is of the year 2003, to avoid further delay, both the parties are directed to appear before the Court without waiting for notice on 12.10.2011,

v) The cost awarded shall be paid to the accused on the date of appearance.