SUN ENTERPRISES Vs. SHAMSEED THUNDIYIL

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 it is aggrieved by the order dated 28.4.2012 in C.C.No. 411 of 2010 (CMP No.2620/2010) of the court of the Judicial First Class Magistrate, Kattappana by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

(2.) HEARD the counsel for the appellant. I have perused the judgment of the trial court impugned in this appeal.

(3.) THOUGH the certified copy of the proceedings of the court is not produced before this Court, handing over a copy of the same, the counsel submitted that neither the complainant nor its counsel was aware of the proceedings for which the learned Magistrate ordered on 5.3.2012 and posted on 28.4.2012. From the impugned order, it appears that though the complainant was absent, it is represented by its counsel since the learned Magistrate has recorded that he had heard the matter. Therefore, presumably the presence of the complainant was not required. However, the order passed by the learned Magistrate is in favour of the accused acquitting him under Section 256(1) of the Cr.P.C. That itself shows that there is no decision on merit, even thought the court has taken cognizance upon the complaint preferred by the appellant connected with the dishonour of cheque for Rs.2,78,720/-. Considering the all the facts and circumstances involved in the case, I am of the view that it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit, but at the same time, according to me, such an opportunity can be given only on terms.