A complainant’s repeated absence in a Section 138 case can lead to acquittal for lack of evidence, but a court may allow further opportunity to adduce evidence to ensure fair justice.

JUDGMENT :

A.BADHARUDEEN, J.

Dated, this the 02^nd day of February, 2026 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. 677403 dated 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