TMI Blog2020 (12) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... given till October 2010. No application was filed to recall the earlier order and the Magistrate proceeded to pass an order on merits and acquitted the accused. The main contention of the learned counsel for the complainant is that the Magistrate ought to have dismissed the complaint for non-prosecution ought not to have proceeded to pass an order. The fact that P.W.1 has been examined before the Trial Court is not in dispute and documents-Exs.P1 to P8 are also marked - On perusal of the order sheet, it shows that the trial Judge has taken as 'no cross' when P.W.1 did not appear before the Trial Court and there is no order for expunging the evidence of P.W.1 and the same is only the submission made by the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The parties are referred to as per their original ranking before the Trial Court as complainant and accused in order to avoid the confusion and for the convenience of the Court. 4. The brief facts of the case are that the complainant had filed a complaint stating that the accused owed a sum of ₹ 1,50,000/- to her. For discharging the said amount, a cheque was given by the accused. When the said Cheque was presented, the same was dishonoured for the reason funds insufficient . Thereafter, notice was issued; calling upon him to make the payment and the same was served on the accused. The accused has not given any reply. Hence, the complaint was filed. 5. The learned Trial Judge noted that the complainant after her examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trial Court is illegal. Hence, it requires an interference of this Court. 8. The learned counsel in support of the grounds urged in the appeal also reiterate the oral submissions that the Trial Judge ought not to have expunged the evidence and proceeded to pass the judgment of acquittal, ought to have dismissed the complaint for non-prosecution and the same has not been done. Without the evidence, the trial Judge has proceeded to pass an order of acquittal. In spite of this, the matter is listed for final arguments. The learned counsel for the respondent did not turn up and on perusal of three dates of previous hearing also, learned counsel for the respondent did not turn up and hence, taken as 'no arguments' on the side of res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was pronounced by acquitting the accused. 12. Having taken note of the order sheet of the Magistrate, it is clear that though P.W.1 was examined in the month of March 2009, the complainant had not appeared before the Magistrate. Hence, taken as 'no cross'. Subsequently, an application was filed and the same was considered by the Trial Court and passed an order on 29.05.2010. In spite of the Magistrate being lenient in considering the application filed under Section 311 of Cr.P.C, again the complainant did not choose to appear before the Magistrate. However, an opportunity was given till October 2010. No application was filed to recall the earlier order and the Magistrate proceeded to pass an order on merits and acquitted the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the matter was also not decided on merits; I am of the opinion that this Court can set aside the order and remand the matter for fresh consideration and to decide the matter on merits. 14. Having taken note of the conduct, it is a fit case to impose cost on the complainant. 15. In view of the discussions made above, I proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The impugned Judgment of acquittal dated 11.11.2010 passed in C.C.No.1913/2008 on the file of J.M.F.C., (V Court), Mangaluru, D.K, is set aside. (iii) The matter is remanded to the Trial Court for fresh disposal on merits. (iv) The parties are directed to appear before the Trial Court on 29.12.2020 without expecting the summons agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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