The main legal point established is that the trial court must exercise its power judiciously and fairly, considering the stage of the case and the rights of the parties involved.

(Appeal filed under Section 256 Cr.P.C. against the Judgment in C.C.No.24/1995 on the file of the Judicial Magistrate No.I, Gobichettipalayam)

The complainant, in C.C.No.24/1995 on the file of Judicial Magistrate No.I, Gobichettipalayam is the appellant.

2. The appellant preferred a private complaint against the respondent/accused, seeking appropriate punishment for the alleged offences, under Sec.138 of Negotiable Instruments Act and Sec.420 I.P.C, alleging that the respondent, who had dealings with the complainant, has to pay a sum of Rs.2,21,069.08, that in order to discharge the said liability, he had issued a cheque on 9.12.1994, that when the cheque was tendered for collection, the same was bounced for the reason "Exceeds arrangement", that thereafter, even despite the issue of statutory notice, failed to pay the cheque amount and that for the offences, committed under Section 138 of Negotiable Instruments Act, he is to be dealt with, according to law.

3. On the basis of the written complaint, preferred by the holder of the cheque, after recording sworn statement, the trial Court took the case on file, taking cognizance and posted the same on 15.2.1995, thereafter, adjourned the case for further hearing.

4. When the case was posted on 20.11.1998, neither the complainant nor his counsel was present. Therefore, the trial Court, invoking the provisions available in Section 256 of Criminal Procedure Code, dismissed the complaint, acquitting the accused, as per the Judgment dated 20.11.1998, which is under challenge in this appeal.

5. Heard Mr. P.R. Balasubramanian, the learned counsel for the appellant.

6. It is the case of the appellant, that the respondent/accused had business transactions with him between 3.11.1993 and 21.9.1994, and as per the averments in the complaint, there was a balance of Rs.2,21,069.08. For that amount, it seems a cheque has been issued by the accused, which was not honoured, when tendered for collection, resulting a private complaint, as said above, which was dismissed under Section 256 of Criminal Procedure Code.

7. The learned counsel for the appellant submits that the complainant/appellant was absent only for one hearing and for his non-appearance, when the same is also not mandate, dismissal of the complaint, by invoking Section 256 Cr.P.C may not be proper. It is the further submission of the learned counsel for the appellant, that in order to give a chance for the appellant, the acquittal order, under Section 256 Cr.P.C should be set aside, which convinces me, considering the hasty action, taken by the trial Court.

8. As seen from the records, though the case was taken on file on 15.2.1995, after appearance of the accused, he failed to appear before the Court, resulting issuance of Non-Bailable Warrant. The Notes paper maintained by the trial Court would reveal further that lastly, the case was adjourned from 23.10.1998 to 20.11.1998, not for the appearance of the complainant alone to proceed with the trial of the case, but for the execution of the Non-Bailable Warrant against the accused. Therefore, when the accused himself has not appeared, when Non-Bailable Warrant was pending, where the Court had directed to address the authority concerned, to execute the non-bailable warrant, the absence of the complainant should not have been considered as serious one, that too, to invoke Section 256 Criminal Procedure Code. Mere absence of the complainant on 20.11.1998, when the accused himself was absent and when non-bailable warrant is pending, no earthly purpose could be served by his presence. The trial Court, without considering this fact, the stage of the case, whether the presence of the complainant is so essential or not, taking advantage of the provisions available in Sec.256 Cr.P.C, to have easy disposal, had chosen the short cut method of disposing the case, which should be discouraged. If the case was ready to be proceeded further, such as, examining the witnesses, accused being pres