DONY ABRAHAM 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 as he is aggrieved by the order of acquittal recorded by the trial court under Section 256(1) of the Code of Criminal Procedure.

(2.) Counsel for the appellant submitted that the appellant was prosecuting the complaint effectively and he had filed proof affidavit, but when the case comes up for evidence on 30.12.2008, the appellant/complainant could not appear before the court below as he was laid up and his counsel also failed to appear before the court as he had engaged in another court. Therefore, the counsel submitted that an opportunity may be given to the complainant to prosecute the matter on merit, especially when the cheque in question covers an amount of Rs. 1 lakh.

(3.) I have carefully considered the submission of Learned Counsel for the appellant. From the submission of the Learned Counsel and from the appeal memorandum, it appears that the court below has already taken cognizance upon the complaint preferred by the appellant connected with dishonour of cheque covers an amount of Rs. 1 lakh, but there is no decision on merit. Though counsel for the appellant submitted that the complainant was laid up, no material is produced either before the trial court or before this Court to substantiate the above grounds. Besides the above, counsel for the complainant has also failed to appear before the court below and represent the complainant. Therefore, the learned Magistrate is justified in acquitting the accused under Section 256(1) of the Cr.P.C. But, having regard to the facts and circumstances of the case, especially when the cheque in question covers an amount of Rs. 1 lakh and though there was failure on the part of the complainant in appearing before the court below on 30.12.2008, considering the fact that the complainant was prosecuting the matter effectively, it is only just and proper to grant one more opportunity to the complainant. Such opportunity can be given only on terms since the complainant himself failed to explain the reasons for his absence on the date of the impugned order and for non-representation.