ROOTS COMMUNICATIONS Vs. HIGH POWER AGENCIES

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 it is aggrieved by the judgment dated 15.3.2005 in S.T.No. 1331 of 2004 of the court of Judicial First Class Magistrate -I, Thrissur, by which the learned Magistrate acquitted the accused under Section 256 of the Cr.P.C. Heard the counsel for the appellant. I have perused the judgment of the trial court impugned in this appeal.

(2.) LEARNED counsel for the appellant submits that there was no wilful laches or negligence on the part of the complainant in appearing before the court on the date of the impugned order, as the understanding between the complainant and his counsel in the trial court was that the date on which the presence of the complainant would be necessary, the counsel will inform the complainant about it. But no such letter was sent by the counsel and it was under that factual background, the complainant failed to appear before the trial court on the date of the impugned order. It is the further submission of the learned counsel that though the complainant was absent, the counsel for the complainant was represented and he filed an application to excuse his absence. Therefore, the counsel submits that one more opportunity may be given to the complainant, especially, when the cheque in question covers an amount of Rs.19,654/ - . I have carefully considered the submission of the learned counsel for the appellant. It is relevant to note that the impugned order is in a printed form. From the B'diary proceedings produced by the appellant, it appears that, the impugned order was passed on the third date from the date of the appearance of the accused i.e., 26.10.2004. It is also discernible from the B'diary proceedings that though the complainant was absent, to exempt the complainant from his physical appearance, an application is seen filed by the counsel who represented the complainant. The said application was rejected without any convincing reason. It is also a fact that though the trial court has taken cognizance for the offence punishable under section 138 of NI Act on the basis of the complainant preferred by the appellant connected with the dishonour of the cheque for an amount of Rs.19,654/ - , 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 such an opportunity can be given only on terms, as there is laches on the part of the complainant in appearing before the trial court on the date of the impugned order.