Absence in court proceedings without valid justification can lead to dismissal for non-prosecution, reflecting adherence to procedural justice.

ORDER

The Criminal Original Petition has been filed to grant special leave to the petitioner to prefer an appeal against the judgment passed in C.C.No.343 of 2018 dated 05.08.2022 by the learned Judicial Magistrate, Fast Track Court No.I @ ML, Coimbatore.

2. The case of the petitioner is that, the petitioner/complainant and the respondent/accused are known to each other for a long period of time and on such acquittance, on 09.03.2015, the respondent approached the complainant and sought for a loan to the tune of Rs.2,50,0000/- for his urgent family expenses and since the petitioner had no amount in hand, he gave 108 grams of Gold ornaments worth about Rs.2,50,000/- and the respondent executed a loan agreement in favour of the petitioner on the same day and he also agreed to return the gold ornaments on or before 15.08.2015. However, despite the repeated request, the respondent had not returned the gold ornaments borrowed from the petitioner. Thereby, the petitioner sent a legal notice dated 04.11.2016, pursuant to which, on 20.12.2016, the respondent issued a cheque bearing No.000002 dated

30.01.2017 for a sum of Rs.2,50,000/-, in discharge of the above liability. When the said cheque was presented for collection, the same was returned with endorsement 'Funds Insufficient'. Thereby, the petitioner sent a legal notice on 28.03.2017, however, there was no response. Therefore, left with no other alternative, the complaint was filed by the petitioner for an offence u/s 138 of the Act before the trial court in CC.No.343 of 2018. However, the trial court, had mechanically dismissed the said complaint for non- prosecution and acquitted the respondent. Aggrieved by the same, the petitioner has filed the present petition seeking grant of special leave to prefer an appeal against the judgment dated 05.08.2022 made in C.C.No.343 of 2018.

3. Learned counsel for the petitioner submitted that, it is true that the petitioner filed a complaint under Section 138 of the Act as against the respondent in the year 2018 and the petitioner/complainant examined himself as PW1 and Exs.P1 to P4 were marked on 12.09.2018 and in chief continuation, Exs.P5 and P6 were marked on 05.12.2018 and the matter was posted for PW1 cross on 08.02.2021. Since the petitioner was unable to appear before the trial court on 08.02.2021, he filed a petition under Section 256 of Cr.P.C. in CMP.No..2624 of 2022 and the same was allowed on condition that the petitioner has to appear on 27.06.2022. It is pertinent to note that, at the relevant point of time, the petitioner was aged about 73 years and due to certain health ailments, he was unable to appear before the trial court on 27.06.2022. However, the trial court, without taking into consideration the age of the petitioner and the serious health ailments suffered by the petitioner, had dismissed the subsequent petition under 256 of Cr.P.C. in CMP.No.4061 of 2022 and also dismissed the petitioner's complaint under of NI Act for non-prosecution, which is not sustainable and it is a clear violation of principles of natural justice and, therefore, interference is warranted with the findings recorded by the court below.

4. Though notice was served and the name of the respondent was printed in the cause list, however, none appeared on his behalf. Considering the period of pendency of this petition, this Court is inclined to dispose of the same based on the materials available on record.

5. This Court heard the learned counsel for the petitioner and perused the materials available on record.

6. A perusal of the materials available on record particularly the impugned order makes it clear that initially the petitioner/complainant had appeared before the trial court and examined himself as PW1 and marked Exs.P1 to P4 on 12.09.2018 and in chief continuation, marked Exs.P5 and P6 on 05.12.2018 and the matter was posted for PW1 cross on 08.02.2021, however, instead of appearing for cross examination, the petitioner filed a petition under S