Condonation of appearance of complainant and simultaneous dismissal of complaint.

R. BANUMATHI, J.

Aggrieved over the dismissal of his complaint acquitting the Accused under S.255 (1) Crl.P.C. in C.C.No.7084 of 1996 by the IX Metropolitan Magistrate, Saidapet, Chennai by the order dated 17.10.1997, the Complainant has preferred this appeal.

2. Case of the Complainant is that the accused borrowed money for his business purpose from the Complainant. In discharge of his part liability, the accused had issued Cheque bearing No. 453120 dated 17.0 9.1996 for a sum of Rs. 1, 00, 000/- drawn on State Bank of India, Anna University Branch, Chennai. When the Cheque was presented for collection on 19.10.1996, the same was returned dishonoured for " Insufficiency of Funds" on the same day.

The Complainant had issued notice of demand dated: 28.10.1996, which was received by the accused on 30.10.1996. Despite receipt of the notice by the accused, the accused did not pay the money due. Hence the Complainant has filed the complaint under S.138 of Negotiable Instruments Act.

3. The Complaint was taken on file on 16.12.1996 and was adjourned to various dates. On 17.10.1997, the Complainant was absent. On his behalf, petition was filed under S. 256 Crl.P.C., for condoning his absence. The learned Magistrate has allowed the petition filed under S.256 Crl.P.C.; but has dismissed the complaint acquitting the accused under S.255 (1) Crl.P.C.

4. Aggrieved over the dismissal of the complaint, the Appellant /Complainant has preferred this appeal. Assailing the impugned order, learned counsel for the Appellant / Complainant has submitted that having condoned the absence of the Complainant under S. 256 Crl.P.C., the learned Magistrate ought not to have dismissed the Complaint acquitting the accused under S. 255 (1) Crl.P.C. It is contended that S. 255 Crl.P.C. is attracted only on the evidence recorded and when no evidence has been recorded, recording of acquittal under S. 255 (1) Crl.P.C. suffers from serious error warranting interference. Submitting that the discretion under S. 256 Crl.P.C. is to be judiciously exercised, reliance has been placed upon 1997 Indlaw SC 1230 - Associated Cement Co. Ltd. v. Keshvanand.

5. Countering the arguments, on behalf of the Respondent / Accused, it is submitted that when the Complainant had not adduced the evidence and had no intention to get along with the case, the trial Court has rightly acquitted the Respondent / Accused under S.255 (1) Crl.P. C. and that the order does not suffer from any error and the same cannot be interfered with.

6. In consideration of the impugned order and the submissions of both sides, two points arise for consideration in this appeal:-

(i) Having condoned the absence of the Appellant / Complainant, was the trial Magistrate justified in dismissing the complaint and recording the acquittal under S.255 (1) Crl.P.C. ?

(ii) Whether the order of acquittal under S.255 (1) Crl.P.C. suffers from any serious error warranting interference ?

7. A peculiar situation has arisen in this case leading to serious error of law. The complaint was taken on file on 16.12.1996. From then onwards, the case was adjourned to 22.01.1997, 19.02.1997, 19.03 .1997, 10.04.1997, 06.05.1997, 03.06.1997, 09.06.1997, 04.07.1997, 08 .08.1997 and 12.09.1997. On these hearing dates, either the Appellant / Complainant was present or his personal appearance has been dispensed with on filing application under S. 256 Crl.P.C. Likewise on those hearing dates, either the Respondent / Accused was present or his personal appearance was dispensed with by allowing the petition filed under S. 317 Crl.P.C. On 19.02.1997, there was no representation for the accused. Hence Non Bailable Warrant was issued against him. When Non Bailable Warrant was pending, on petition filed by the accused, Non Bailable Warrant was ordered to be recalled. Thus the learned trial Magistrate was repeatedly adjourning the case for giving opportunity to the Complainant for adducing evidence.

8. The case was posted on 17.10.1997. On that date