K C AZEEZ Vs. E A MUHAMMED KABEER

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 26.10.2009 of the Court of Judicial First Class Magistrate-II, Mananthavady in STC.No.1123/2009 of acquittal recorded by the trial court under Section 256 (1) of the Code of Criminal Procedure.

(2.) THE learned counsel for the appellants submitted that when the case was posted in the trial court for evidence of the complainant on 26.10.2009, it was mistakenly noted as 28.10.2009 and, therefore, when the case was taken on 26.10.2009 neither the complainant nor his counsel present in the court below and consequently the court issued the order under Section 256(1) of Cr.P.C and acquitted the accused. It is the further submission of the learned counsel that there was no willful latches or negligence on the part of the complainant in appearing before the court below, but the absence was due to the mistake occurred while noting down the exact posting date of the case and, therefore, one more opportunity may be given to the appellant to prosecute the matter on merit.