V V JAMALUDHEEN Vs. AMANA FURNITURE MART

JUDGEMENT

(1.) PETITIONER has already taken steps to serve notice on the respondent by publication of the same in the newspaper and also produced the copy of the paper publication. Therefore the service of notice on the respondent is completed.

(2.) BY publishing the notice through newspaper though it is brought to the notice of the respondent about the proceedings of this Court and posting of this case on 24/01/2011, nobody has turned up and the appeal is not resisted.

(3.) FROM the docket sheet entry produced along with the Leave Petition which is a properly certified copy, it appears that the court below ordered summons against the accused on 19/01/2004 to be served through the Sub Inspector of Police concerned and posted the case on 30/03/2004 and on 30/03/2004 the complainant was represented and accused applied and copies furnished and thereafter adjourned the case to 28/06/2004. On 28/06/2004 also the accused applied but they were acquitted under Section 256(1) of Cr.P.C. on that day itself as the complainant was absent though an application was filed to excuse his absence. It is true that it is recorded that counsel for the complainant was also absent on that day and no representation is made on behalf. However it is crystal clear from the proceedings of the court below on 28/06/2004, though the complainant as well as his counsel were absent, an application was filed on behalf of the complainant. From the above proceedings of the court below it is not discernible whether the accused had entered appearance and whether their plea was recorded or not hence it cannot be said evidence stage was reached. It is also relevant to note that though the trial court has taken cognizance for the offence under Section 138 of the Negotiable Instruments Act, on the basis of the complaint filed by the appellant connected with the dishonour of a cheque for an amount of Rs.3,00,000/- there is no decision on merit. Having regard to the facts and circumstances, according to me it is only just and proper to grant one more opportunity to prosecute the matter on merit and to have a decision on merit but subject to terms.