IMPORTANT POINT
Power under Section 256 of Cr.P.C., is to be exercised with great care and caution.

M. Venugopal, J.—The Appellant/Complainant has preferred the instant Criminal Appeal before this Court as against the Judgment dated 20.10.2016 in C.C.No.3605 of 2009 passed by the Learned Metropolitan Magistrate, Fast Track No.III, Saidapet.

2. At the outset, this Court points out that today, Crl.O.P.No.320 of 2017 [seeking Grant of Special Leave to prefer an Appeal] was allowed by this Court for the reasons assigned therein.

3. The trial Court while passing the Impugned Judgment came to the conclusion that the ‘Complainant never appeared for cross examination. The case was pending for more than one year for cross of P.W.1. On 26.02.2016 this Court passed a conditional order that the complainant should appear on 26.04.2016 for cross of P.W.1. Even after conditional order, the complainant had not appeared on 26.04.2016. Thereafter, the complainant never took any steps to subject himself for cross of P.W.1 etc.,’ and ultimately, came to the conclusion that the case of the complainant was not a reliable one and found the Respondent/Accused not guilty and acquitted him under Section 248(1) of Cr.P.C.,

4. According to the Learned Counsel for the Petitioner/Appellant/Complainant the ‘Judgment of Acquittal’ passed by the trial Court dated 20.10.2016 in C.C.No.3605 of 2009 is against Law, weight of evidence and in negation of ‘Principles of Natural Justice’.

5. The Learned Counsel for the Petitioner/Appellant urges before this Court that the trail Court had totally ignored the evidence of the complainant as P.W.1 and in fact P.W.1 was cross examined by the Respondent/Accused. The Learned Counsel for the Petitioner/Appellant projects an argument that on the side of the Respondent/Accused there was no challenge in regard to the documents marked during the cross examination of P.W.1 (Complainant) on 29.10.2012. Therefore, the trial Court had committed an error in making an observation in the ‘Judgment of Acquittal’ that the Petitioner/Appellant/Complainant never appeared for cross examination.

6. The Learned Counsel for the Petitioner/Appellant proceeds to take a stand that on 26.04.2016 both the Petitioner/Appellant/Complainant and the Respondent/Accused had not appeared before the trial Court and on their side, the Petitions under Sections 256 and 317 of Cr.P.C., were filed and allowed by the trial Court. In effect, the contention of the Learned Counsel for the Petitioner/Appellant is that the trial Court was not correct in making an observation that the Petitioner/Appellant/Complainant never took any steps to subject himself for cross examination as P.W.1.

7. The Learned Counsel for the Petitioner/Appellant brings it to the notice of this Court that on 09.06.2016, when the Petitioner/Appellant/Complainant was present and was ready to subject himself for cross examination, the Respondent/Accused was absent and further, the Accused’s Counsel had not cross examined P.W.1 (Complainant). However, this aspect of the matter was over looked by the trial Court before closing the evidence of P.W.1.

8. Added further, the Learned Counsel for the Petitioner/Appellant proceeds to state that even on 20.07.2016, the Respondent/Accused’s Counsel had not cross examined the Appellant/Complainant (P.W.1) although he was present.

9. It is represented on behalf of the Petitioner/Appellant that on 18.08.2016 both the Petitioner/Appellant/Complainant and the Accused were present and due to Medical Leave of the Learned Magistrate (MMC) the matter was adjourned for Judgment. On 20.09.2016, also when both the parties were present, again because of medical leave of the Learned Magistrate, the matter was posted to 20.10.2016.

10. Lastly, it is submitted on behalf of the Petitioner/Appellant that the trial Court should have seen that even on 20.10.2016 the Appellant/Complainant’s Counsel had represented that cross examination of P.W.1 was not complete and P.W.1 was willing to submit for the same. However, the trial Court had failed to consider that the P