P HAMZA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 8.5.2012 in C.C.No.10 of 2012 of the court of Judicial First Class Magistrate-II, Parappanangadi, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) LEARNED counsel for the appellant submitted that cognizance was taken in the above case on 18.6.2011 in the court of Judicial First Class Magistrate-Parappanangadi, and thereafter the case was transferred to the present trial court, and thus the accused entered appearance on 15.2.2012 in the present trial court, on which date he was released on bail and his plea was recorded. Counsel further submits that, thereafter the case was adjourned to 14.3.2012, 20.4.2012 and to 8.5.2012 for evidence and on 14.3.2012, the complainant was present but on 20.4.2012 he could not appear but he was represented by his counsel. It is the further case of the appellant that though the case was adjourned and posted to 8.5.2012, the date was mistakenly noted down by the clerk of the counsel in the trial court as 8.6.2012 and thus when the case was taken on 8.5.2012, neither the complainant nor his counsel was present. Thus the counsel also submits that there was no wilful negligence on the part of the complainant or his counsel in appearing before the court on 8.5.2012. It is the further submission of the learned counsel that as the cheque in question covers an amount of Rs. 8 lakhs, one more opportunity may be given to the complainant to prosecute the matter on merit, after setting aside the impugned order.