ANILKUMAR P G Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is preferred at the instance of the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act as he is aggrieved by the order dated 12.12.2011 of the court of the Chief Judicial Magistrate, Kollam in S.T.No. 521 of 2011, by which the learned Magistrate, acquitted the accused under section 256(1) Cr.P.C.

(2.) I have heard the counsel for the appellant and I have perused the order impugned.

(3.) SINCE the impugned order is cryptic in nature, this court is not in a position to ascertain whether the learned Magistrate has applied his mind to invoke Section 256(1) Cr.P.C and whether the complainant was regularly absent or not. From the order impugned, it is also seen that, the case was posted on that day for appearance of the accused. It is also relevant to note that, the learned Magistrate has specifically stated in paragraph 2 of the order that, the complainant and advocate were absent and applied. Even though Section 256(1) Cr.P.C enables the Magistrate to acquit the accused if the complainant is absent on the date fixed for the appearance of the accused, it is equally important to note that, even if the accused has appeared on that day the Magistrate can, while exercising his jurisdiction, adjourn the case so as to enable the parties to appear. It is for the learned Magistrate to consider as to whether the presence of the complainant is inevitable for the progress of the trial There is no such discussion or reasoning in the order. It is also relevant to note that, though the court has taken cognizance for the offence punishable under section 138 of the NI Act, on the basis of the complaint preferred by the appellant connected with the dishonour of the cheque which covers an amount of Rs.50,000/-, there is no decision on merit. Therefore, according to me, one more opportunity can be given to the complainant to prosecute the matter on merit, but subject to terms as there was lapse on the part of the complainant in appearing before the court below.