1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.A.(MD) No.100 of 2011 A.Ashok Kumar . . . Appellant/Complainant Vs. Padmanathan . . . Respondent/Accused Prayer: Criminal Appeal is filed under Section 378 of the Criminal Procedure Code, praying to call for the records in C.C.No.198 of 2007 on the file of Court of Judicial Magistrate No.V, Madurai and set aside the judgment of acquittal dated 30.04.2010. For appellant : Mr.V.Manoharan For Respondent : Mr.M.Saravanan O R D E R The appellant is the complainant in C.C.No.198 of 2007, pending on the file the Court of Judicial Magistrate No.V, Madurai, which was filed under Sections 138 and 142 of Negotiable Instruments Act to prosecute the respondent/accused. 2. When the case was listed for hearing on 30.04.2010, the complainant as well as the accused were absent and on their behalf petition under Sections 256 and 317 Cr.P.C. were respectively filed. The trial Court on taking into consideration of the fact that the complainant never choose to appear for trial and in spite of posting the matter continuously for complainant side evidence, the complainant did not appear, dismissed the complaint on the ground of his non-appearance and acquitted the accused. Challenging the vires of the same, the present Criminal Appeal is filed. 3. The learned counsel appearing for the appellant/complainant would submit that due to genuine and bonafide reason the complaint did not appear before the Court on 30.04.2010 and stating the said reason a petition under Section 256 Cr.P.C. came to be filed and it was dismissed by the trial Court without proper or sufficient reason and hence, prays for setting aside the order. 4. The learned counsel appearing for the respondent/accused would submit that the calender case is of the year 2007 and since the complainant has not chosen to co-operate for the disposal of the case and even though the case was adjourned for number of times for complainant's side evidence, he has not chosen to lead evidence and the Court below was left with no option except to dismiss the calender case on account of the appellant's/ complainants's non appearance and hence, prays for dismissal of the Criminal Appeal. https://hcservices.ecourts.gov.in/hcservices/ 2 5. This Court has carefully considered the rival submissions and also considered the materials available on record in the form of typed set of papers. 6. The learned counsel appearing for the appellant/complainant on instruction would submit that the complainant will co-operate with the trial Court for the expeditious trial of the case and he will advice the appellant/complaint accordingly. The learned counsel appearing for the appellant/ complainant on instruction would further submit that the appellant/complaint is ready and willing to pay a sum of Rs.1,000/- (Rupees One Thousand only) by way of cost to the learned counsel appearing for the respondent/accused. 7. This Court taking into consideration the rival submissions and also the facts and circumstances of this case is of the view that one more opportunity is to be given to the appellant/ complainant to prosecute the case. 8. In the result, the Criminal Appeal is allowed and the order dated 30.04.2010, made in C.C.No.198 of 2007 by the Court of Judicial Magistrate No.V, Madurai is set aside subject to the condition that the appellant/complainant shall pay a sum of Rs.1,000/- (Rupees One Thousand only) to the learned counsel appearing for the respondent/accused in this appeal on or before 30.06.2011. Call on 01.07.2011. sj Sd/- Deputy Registrar[LA] /True copy/ Assistant Registrar To: 1.The Court of Judicial Magistrate No.V, Madurai. 2.Do-Thro' The Chief Judicial Magistrate, Madurai. Copy to: The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai. Crl.A.(MD) No.100 of 2011 Dated:27.06.2011 2P/4C RPB 29.06.2011 https://hcservices.ecourts.gov.in/hcservices/