P.MANOJ KUMAR Vs. ARAVINDAKSHAN K.M.

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 he is aggrieved by the judgment dated 3.12.2012 in S.T.No.3 of 2009 of the court of Judicial First Class Magistrate-II, Parappanangadi, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

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

(3.) LEARNED counsel for the appellant submitted that the complainant initially approached the court of Judicial First class Magistrate-I, Parappanangadi, by filing a complaint which was taken on file as S.T.No.1413 of 2008, but subsequently the case was transferred to the court of Judicial First Class Magistrate-II, Parappanangadi, where the case is renumbered as S.T.No.3 of 2009, and thereafter he was prosecuting the matter effectively and very vigilantly. It is the further submission for the counsel for the appellant that during the trial of the case Pws.1 to 3 were examined and when the prayer to recall PW1 was declined, an application, which is numbered as CMP No.448 of 2009, was filed under section 311 of Cr.P.C. before the court below which was dismissed by order dated 12.1.2010, against which the appellant had preferred Crl.R.P.No.4 of 2010 before the sessions court and the sessions court, stayed the trial of the case by order dated 25.2.2010 and the revision petition was finally disposed of on 11.9.2012. Though the petitioner has applied for a certified copy, the same was received only on 19.10.2012 and therefore the certified copy in the revision petition could not be produced before the court on or before 11.10.2012 as directed by the trial court. It is the further submission of the counsel that though the case was posted on 3.12.2012, the posting date was mistakenly noted down by the clerk attached to the office of the counsel for the complainant in the trial court as 3.1.2013 and therefore when the case was taken on 3.12.2012, neither the complainant nor his counsel was appeared before the trial court. Consequently, the learned Magistrate passed the impugned order. Therefore, it is the submission of the counsel for the appellant under the above facts and circumstance and considering the amount involved in the case, one more opportunity may be given to the complainant to prosecute the matter on merit.