K. Hema, J.

The appellant is the complainant. He filed a complaint against 1st respondent, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken up on file in the year 2002 and, summons was issued to the accused. On 6.10.2003, complainant was absent and process fee was not paid and hence, the accused was acquitted under Section 256(1) of the Code. The said order is under challenge in this appeal.

2. Notice was served on accused-1st respondent and he also entered appearance through counsel. But, at the time of hearing of this appeal today, neither the appellant nor the 1st respondent was present or represented.

3. As per the memorandum of appeal, a contention is raised that the absence of the complainant on the crucial day i.e., on 6.10.2003 was not wilful. According to appellant, he was suffering from back pain for the past three years and it was difficult for him to move and travel. A medical certificate was allegedly entrusted with his counsel for making an application, but complainant's counsel failed to note the posting date in the diary and hence, he missed to note that the case was posted on 6.10.2003, it is contended.

4. It is also st