THE HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No.729 OF 2004 JUDGMENT: This appeal was admitted on 22-03-2004. Thereafter it came up for hearing on 21-01-2010 and on which day as none appeared on behalf of the appellant – complainant, it was adjourned to 18-02-2010. On 18-02-2010, the matter was adjourned to 01-04-2010 due to change of counsel by the appellant. On 01-04-2010 and 16-04-2010, at request the matter was adjourned. On 20-04-2010, since none appeared for the appellant, it was directed to be listed after Summer Vacation 2010. Thereafter, the matter came up for hearing on 02-09- 2010, on which day, at request, it was adjourned to next week. Again on 09-11-2010, as there was no representation for the appellant, it was directed to be listed under the caption “for dismissal” on 26-11-2010. However, the matter came up for hearing on 01-12-2010, on which day the matter was adjourned to four weeks by releasing the matter from the caption “for dismissal”. Thereafter, on 15-02-2011, none appeared for the appellant and there was no representation on its behalf, as such, it was adjourned to next week. On 23-02-2011 and 28-02-2011, since none appeared on either side, the matter was adjourned to 01-03- 2011. On 01-03-2011, the matter was adjourned to 07-03-2011 and again on 07-03-2011 and 14-03-2011, none appeared for the appellant and there was no representation on its behalf, as such, on 14-03-2011, the matter was directed to be listed today under the caption “for dismissal.” 2. Today also, in spite of the matter being listed under the caption “for dismissal”, none appeared for the appellant and there is no representation on its behalf. 3. Respondent No.1 herein, who is accused in C.C. No.102 of 2002 on the file of the learned Judicial Magistrate of First Class, Vizianagaram, is acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act”) by the said Court by its judgment dated 27-09-2003. Aggrieved by the said judgment of acquittal, the complainant has preferred this appeal, inter alia, contending that the trial Court has committed an error in acquitting respondent No.1 in spite of there being evidence sufficient to warrant his conviction since Ex.P-1 cheque issued by respondent No.1 was dishonoured for insufficiency of funds and that the trial Court ought to have disbelieved that the cheque was dishonoured due to material alterations with regard to ‘year’ of the cheque. 4. It is the case of the appellant that respondent No.1 was surety for the principal borrower and it was in that connection he has issued Ex.P-1 cheque towards discharge of his liability. However, the defence of respondent No.1 was of totally denial. During the course of trial, it was transpired that the complainant had already instituted a civil suit against the principal debtor and the guarantors. However, in a case where the complaint is filed under Section 138 of the NI Act, the complainant has to prove that the accused had issued the cheque in dispute towards discharge of his liability. However, the complainant in this case had utterly failed to prove its case against the accused, respondent No.1, for the offence under Section 138 of the NI Act and observing so, the trial Court dismissed the complaint. 5. In the circumstances, this Court is of the view that the trial Court has not committed any error or illegality in dismissing the complaint and as such the appeal is devoid of merits and deserves to be dismissed. 6. In the result, the Criminal Appeal is dismissed. __________________ B.N. RAO NALLA, J March 16, 2011. PV