JUDGMENT 1. The appellant is the complainant in C.C.785 of 1998 on the file of the Chief Judicial Magistrate, Kollam. He filed the above complaint against the first respondent alleging offence under Section 138 of the Negotiable Instruments Act. On 14.1.2003 when the case was taken up for evidence, the appellant applied for adjournment stating that he was laid up. Alleging that there was no representation for the counsel for the appellant, the trial court by the impugned judgment dismissed the complaint under Section 256 (1) of the Code of Criminal Procedure. Assailing the above judgment of acquittal, this appeal is preferred. 2. I have heard the learned counsel appearing for the appellant and the first respondent. Also perused the judgment impugned. 3. It is revealed that the case was dragged for about five years, because of the failure of the first respondent to appear before the trial court on the posting dates. Even coercive steps were initiated against the first respondent. On 14.1.2003 when the case was taken up for trial, the appellant applied for the reason that he was laid up. The correctness of the same was not at all considered by the trial court. The trial court also has not taken note of the fact that the first respondent was not regularly appearing before the trial court and the failure of the first respondent to appear before the trial court had dragged the matter. In the above circumstances, I find that there is failure of justice especially when there is nothing on record to come to a conclusion that the appellant was not laid up on 14.1.2003 as stated in the application or that the application for adjournment was filed as a ploy to adjourn the case. It appears that the learned Magistrate had taken serious note of the absence of the counsel. The plea of the appellant is that the counsel was held up in another court and he was represented. Since the appellant applied, even if the counsel was present, no evidence could be taken. Therefore, the absence of the counsel was not significant and for that reason the complaint shouldn't have been dismissed. The trial court should have given another opportunity to the appellant and shouldn't have ignored the ground realities including the difficulties and hardship of the parties to the litigation. Therefore, the absence of the counsel was not significant and for that reason the complaint shouldn't have been dismissed. The trial court should have given another opportunity to the appellant and shouldn't have ignored the ground realities including the difficulties and hardship of the parties to the litigation. Therefore, I find that the judgment under challenge is not sustainable and is liable to be interfered. In the result, the appeal is allowed. While setting aside the judgment impugned, the case is remitted back to the trial court for fresh disposal after taking evidence. The parties are directed to appear before the trial court on 1.8.2012. The case being pretty old, the trial court shall give top priority and dispose of the case as expeditiously as possible. The petitioner and the first respondent are directed to cooperate with the trial court in disposing of the case.