TABA ASSOCIATES Vs. PAUL CHAKOLA

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 dated 08/05/2007 in S.T.No.329 of 2006 of the court of the Judicial Magistrate of the First Class-III, Kochi by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

(2.) The learned counsel for the appellant submitted that the cheque in question covers an amount of Rs 50,000/-. It is also the submission of the learned counsel that, prior to the posting of the case on 30/01/2007 and on 08/05/2007, the complainant was regularly appearing and had taken steps to serve notice at the accused and at that time the notices were returned as unclaimed. It is the further case of the complainant on 30/01/2007 and on 08/05/2007 the counsel could not appear before the court below since due to the mistake committed by the clerk attached to the counsel in noting down the case on those dates. Hence according to the learned counsel there was no willful negligence on the part of the complainant or his counsel in appearing before the trial court. Therefore the counsel submitted that one more opportunity may be given to the complainant for prosecuting the matter on merit.

(3.) I have carefully considered the submission made by the learned counsel for the appellant. Though the counsel for the appellant submitted various grounds in support of his challenge against the impugned order and to justify the absence of the counsel on 08/05/2007, no material is produced to substantiate those explanations. However, it appears from the order that the accused has not entered appearance so far probably due to the failure on the part of the complainant in taking steps. But it is a fact that there is no decision on merit though the court has taken cognizance for the offence punishable under Section 138 of the N.I. Act on the basis of the complaint preferred by the appellant connected with the dishonour of cheque covering an amount of Rs 50,000/-. Under the backdrops according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit but subject to terms.