1. This appeal has been filed challenging the judgment dated 12.10.2021 in S.T. No. 1197 of 2016 of the Judicial First Class Magistrate Court – II, Pathanamthitta as extracted hereunder:-

                  “The above case is instituted on a complaint for the offence punishable u/s. 138 of the Negotiable Instruments Act (hereinafter referred as the NI Act).

                  2. The averments in the complaint, in short, are as follows: The accused in discharge of a legally enforceable debt has issued the cheque, bearing No. 677403dated 15/04/2016 for Rs.67,300/- [Rupees Sixty Seven Thousand Three Hundred Only] drawn on SBT, Medical College Campus Branch, Vandanam to the complainant. The complainant presented the cheque through SBT, Pullad Branch for encashment. But on 19/04/2016 it was returned dishonoured stating “Funds Insufficient”. On 25/04/2016 the complainant caused to issue a lawyer's notice to the accused called upon her to pay the cheque amount. It was duly served to the accused. The accused did not make payment. Hence the above case has been instituted alleging the offence punishable u/s 138 of the NI Act.

                  3. Cognizance was taken for the offence punishable u/s 138 of the NI Act and complaint was taken on file as ST 1197/2016. The accused entered appearance in response to the process. She was enlarged on bail. Copies of prosecution records served on her. On 03/1/2018 particulars of offence punishable u/s 138 of NI Act was read over and explained to her. She pleaded not guilty. Thereafter the case was adjourned for the evidence of complainant to 06-09-2019, 19-12-2019, 04- 01-2020, 23-01-2020, 01-02-2020, 27-02-2020,     23-05- 2020,  30-12-2020,   14-01-2021,   21-01-2021,   30-01-2021, 20-02-2021,   10-03-2021,   25-03-2021,   25-03-2021 and 24-04-2021. The complainant was given fifteen effective opportunities for adducing evidence. The complainant was absent on all these posting dates. On 30-01-2021, 20-02-2021, 10-03-2021, 25-03-2021, 25- 03-2021 and 24-04-2021 the case was posted for the evidence of the complainant as 'no further time, last chance (NFT (LC)'. All these postings, the complainant was absent. The complainant appeared before the court only for the purpose of instituting the above case. Thereafter, complainant did not turn up.

                  4. When the case was taken up for consideration today the complainant is absent. Counsel applied time for evidence stating that the power of attorney holder of the complainant is busy in connection with the marriage of her daughter. No document is produced in support of the petition. Complainant was given two years and four months time to adduce evidence. Considering the facts and circumstances of the case and also the period that was given to the complainant to adduce evidence I find that the further adjournment will not serve any purpose. Hence the evidence of complainant is closed. Since there was no incriminating circumstances brought out, the examination u/s. 313(1)(b) of the Cr.PC., is dispensed with. No defence evidence is adduced. I have heard the learned counsel for the accused. Since there is no evidence against the accused she is entitled for an acquittal.

                  5. In the result, the accused is found not guilty for the offence punishable u/s 138 of the NI Act and she is acquitted u/s 255(1) of Code of Criminal Procedure. Bail bond of the accused is cancelled and sureties are discharged. Accused is set at liberty.”

2. Heard the learned counsel for the appellant/complainant, the learned counsel for the first respondent/accused as well as the learned Public Prosecutor appearing for the second respondent.

3. On perusal of the impugned judgment, the accused was acquitted under Section 255(1) of the Code of Civil Procedure (hereinafter for short, 'Cr.P.C.'), for non appearance of the complainant. How this case reached the stage of Section 255 of the Cr.P.C is surprising? However, if the mode was adopted with a view to get points for disposal, the attitude of the officer is noted with extreme displeasure and the same shall be informed to the learned Magistrate to avoid this practice in future. It could be seen from the proceedings of the Magistrate Court that even after repeated opportunity, the complainant remained absent and for that reason, the accused was acquitted and the manner in which the Magistrate recorded the acquittal under Section 255(1) of the Cr.P.C. On perusal of the judgment, it could be seen that after filing of the complaint, the complainant never appeared before the Court and the accused was present on 03.11.2018 for recording his plea. Thereafter, she was also absent.

4. For meritorious disposal of the complaint, as pointed out by the learned counsel for the appellant/complainant, one more opportunity can be granted to the complainant with a view to adduce evidence, by setting aside the impugned judgment and remanding the matter back to the trial court to consider afresh.

5. In the result, the appeal is allowed and the judgment dated 12.10.2021 in S.T. No. 1197 of 2016 under challenge is set aside. The matter is remanded back to the Judicial First Class Magistrate Court - II, Pathanamthitta, for fresh consideration, after providing an opportunity of hearing to the appellant/complainant to adduce evidence. The appellant and the first respondent are directed to appear before the Judicial First Class Magistrate Court - II, Pathanamathitta on 03.03.2026. The continuous absence of the appellant/complainant would pursue this Court to impose costs upon the appellant/complainant to be paid to the accused and the same is fixed at Rs.4,000/-, which shall be paid on the date of appearance of the accused on 03.03.2026, without fail.

                  The Registry is directed to forward a copy of this judgment to the Judicial First Class Magistrate Court - II, Pathanamthitta for information and compliance. The Registry also is directed to forward a copy of this judgment to Siji N.N., the officer, who rendered the impugned judgment.