The complaint/Appellant has preferred this appeal against

the judgment of acquittal passed by the XXIII Additional

C.M.M., Bengaluru City in CC.No.369/2018 dated 02.07.2018.

2.

The rank of the parties in this appeal are referred in

the same rank as referred by the Trial court.

3.

Learned counsel appearing on behalf of the

appellant has submitted his arguments that the trial Court has

not provided an opportunity to the complainant to prosecute

this case. The trial Court has passed this impugned judgment of

acquittal only on the ground that the complainant has not

turned up for cross-examination, which is not sustainable under

law. When the complainant remained absent, the trial Court

would have dismissed the complaint for non-prosecution.

Instead of that the trial Court has passed this impugned

judgment of acquittal. Hence, he sought to allow this appeal.

4.

As against this, the learned counsel for the

respondent has submitted that the trial Court has passed this

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impugned judgment of acquittal in accordance with law and

facts and there are no grounds to interfere with the impugned

judgment. Hence, sought for dismissal of the appeal.

5.

Having heard the arguments on both sides, the

following points would arise for the consideration:

1) Whether the complainant/appellant has made out a

ground to allow this appeal?

2) What order?

My answer to the above points are as under:

Point No.(1) :

In the affirmative,

Point No.(2) :

As per final order.

6.

Reasons to issue No.1:

i.

I have carefully examined the impugned judgment in

para Nos.10 to 14. The trial Court has observed as under:

"10. On going through the materials available on record

coupled with order sheet in detail, it discloses that, on

22.12.2017 the complainant was examined as PW.1 and

got marked documents at Exs.Pl to P6(a). Thereafter,

the accused appeared before this court and obtained the

bail, and plea was recorded and he denied the same and

claimed to have the defence. The accused for cross of

PW.1 has not submitted the required application under

Section 145(2) of Negotiable Instruments Act. Hence,

the case stage is posted for defence evidence.

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11.

On 16.03.2018 the complainant was present,

accused was also present, on the said day the accused

counsel filed applications under Section 311 of Cr.P.C

and 145(2) of Negotiable Instruments Act, seeking for

re-open the stage for cross of PW.1. The said

applications are came to be allowed with cost of Rs.200/-

and the case stage was reset for cross of PW.1 on

17.04.2018.

12.

It is significant fact to note that, from 17.04.2018

onwards, such as on 17.04.2018, 06.06.2018 and

28.06.2018 the PW.1 was remained absent knowingfully

well that, the case stage was re-opened for his

examination. Since, he not turned up; his cross-

examination was taken as nil. In view of the decision

reported in 2014 AIR SCW 3462, the accused statement

under Section 313 of Cr.P.C. was dispensed with and the

accused counsel submitted he has no defence evidence,

hence the case stage is set for arguments.

13.

On appraisal of materials, it is clearly discloses

that, the PW.1 despite known the date for him cross-

examination not come forward for tendering for cross-

examination.

Without

he

is

subjected

for

cross-

examination, the unilateral affidavit evidence is not at all

conclusive evidence and it is not fit or any appraisal.

Moreover, the evidence of PW.1 has to be no significant

role and the complainant himself fails to testify his case

by way of tendering cross- examination. Thereby, he ran

away from the proceedings without facing the defence of

the accused. Therefore, the very act of the complainant

is to be condemned and it is against the object of the

Act. Moreover, the alleged transaction put forth by the

complainant is fails to demonstrate that, he passed the

consideration of Rs.2,50,000/- to the accused, and in

turn, the accused handed over the cheque to him. When

he himself not tendered for cross-examination by the

accused, thereby a