Honble THOMAS, J. – Leave granted.

(2). Appellant -company has been prosecuting the respondent in the court of Judicial Magistrate (First Class), Jammu, alleging the offence under Section 138 of the Negotiable Instrument Act, but learned Magistrate acquitted the respondent on 24.8.1996 solely on the ground that the complainant was absent. Appellant-com-

pany filed an appeal in challenge of the said order of acquittal before the High Court of Jammu & Kashmir with leave but that appeal was dismissed. This appeal is against the said judgment of the High Court.

(3). The complaint was based on a cheque issued by the respondent towards amounts allegedly due from him ranging to a little above eight lacs of rupees. Facts, which are not disputed for the present appeal, show that appellant-company was represented in the trial court by one Puneet Aggarwal with a power of attorney of the company. Learned Magistrate took cognizance of the offence, and after examining Puneet Aggarwal on oath, issued summons to the respondent pursuant to which he appeared in court. As the trial proceeded, Puneet Aggarwal and another person were examined as prosecution witnesses and the case was posted for further evidence to 23.8.1996. On that day the complainant was absent and the counsel for the accused pressed for dismissal of the complaint. However, the Magistrate posted the case to the next day, but on that day also the complainant and his counsel were absent. Then the Magistrate recorded the order of acquittal of the accused under Section 247 of the Code of Criminal Procedure, 1898 (which is applicable to the State of Jammu & Kashmir even now. It will hereinafter be referred to as `the old Code).

(4). In the appeal petition filed before the High Court it was stated the Puneet Aggarwal was posted as an officer of the appellant company at Jammu during the period when the complaint was filed, but subsequently he was transferred to Jallandhar (in Punjab State), the advocate of the complainant (Shri K.S. Johal) faced a misfortune in his family as his brother was involved in a motor accident on 23.8.1996 and was subjected to an operation, and due to such circumstances Shri J.S. Johal could not attend the Court for three days preceding 25.8.1996. It was also mentioned in the appeal petition that the aforesaid Puneet Aggarwal had in fact left Jallandhar for attending the court at Jammu on 23.8.1996, but he could not reach Jammu as motor traffic on the National Highway became paralyzed due to incessant rains which lashed the region continuously for 2 days, and that Puneet Aggarwal never knew that the case was posted to next day and hence his absence on 24.8.1996 was absolutely unintentional.

(5). Learned single Judge of the High Court did not take into account any of the above facts and was not persuaded to interfere with the acquittal as he adopted a ``grammatical construction of Section 247 of the old Code in the following words:

``On a grammatical construction of Section 247 the intention of the legislature becomes clear. Non-appearance of the complainant, after summons are issued, according to that intention, may result in acquittal of the accused.

(6). On the above premise learned single Judge found that there was no legal error in the order passed by the Magistrate and hence dismissed the appeal.

(7). Before we proceed to consider the merits of this appeal we may refer to a strange averment made by the respondent in the counter affidavit sworn to by him which he has filed in this court in answer to the special leave petition. After replying to various grounds, the respondent has stated, with reference to paragraph F of the special leave petition the following :

``In reply to sub-para F it is submitted that a false complaint was filed against the Respondent at the behest of one Mr. Kanwar Sein Anand, who is Forwarding and Clearing Agent of the petitioner company. The said gentleman claims to be a real brother of an Honble Sitting Judge of the Supreme Court and is e

Click Here to Read the rest of this document