K T VARKEY Vs. V K SEBASTIAN

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 28.6.2004 in C.C.No. 48 of 2001 of the court of the Judicial First Class Magistrate-I, Sulthanbathery 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/complainant was prosecuting the matter effectively right from the very institution of the complaint. It is the further submission of the learned counsel that in the first round litigation, the learned Magistrate convicted the accused for the offence under Section 138 of the N.I.Act connected with the dishonour of cheque for Rs.20,000/- and the said conviction and judgment of the trial court was challenged by the accused in the sessions court by filing Crl.A.No.131 of 2003 and the learned Sessions Judge disposed of the appeal by judgment dated 21.5.2004 and remanded the matter back to the trial court for fresh disposal and the appellant/complainant was directed to appear before the trial court on 21.6.2004. But, according to the complainant, the fact regarding the disposal of the appeal and the direction to appear on 21.6.2004 before the trial court was not properly conveyed to the appellant and consequently, the appellant failed to appear before the court on 21.6.2004 and subsequently, on 28.6.2004. Thus, the counsel submitted that there was no negligence or lapse on the part of the appellant in appearing before the court below and it is the further submission of the learned counsel that one more opportunity may be given to the appellant to prosecute the matter on merit.