NAJEEB RAWTHER Vs. BINU T S THYPARAMBIL HOUSE

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 17.10.2003 in C.C.No.350 of 2002 of the court of Chief Judicial Magistrate-Pathanamthitta, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

(2.) LEARNED counsel for the appellant submitted that the appellant was prosecuting the matter effectively. The plea of the accused was recorded on 29.8.2003 and thereafter the case was posted for evidence finally on 17.10.2003. But the clerk attached to the counsel for the appellant in the trial court mistakenly noted down the posting date as 27.11.2003 and therefore when the case was called on 17.10.2003, neither the complainant nor his counsel was present. Consequently, the learned Magistrate issued the impugned order. Therefore, the counsel submits that there was no negligence on the part of the complainant in prosecuting the matter. It is the further submission of the learned counsel that, since the cheque in question covers an amount of Rs.29,900/-, one more opportunity may be given to the appellant/complainant.

(3.) THOUGH the counsel for the appellant submitted various facts in support of the absence of the appellant on 17.10.2003, no material is produced to substantiate those facts. However, it appears that though the court has already taken cognizance for the offence punishable under section 138 of the NI Act based upon the complaint preferred by the appellant connected with the dishonour of cheque for Rs.29,900/-, there is no decision on merit. From the facts stated in the appeal memorandum it appears that though there were ample opportunities for the appellant to appear before the court and to adduce evidence, he did not avail those opportunities. Therefore, there is negligence on the part of the appellant in prosecuting the matter effectively. Having regard to all the facts stated above, I am of the view that, by imposing appropriate terms, one more opportunity can be given to the appellant to prosecute the matter on merit.