CRL.A/2522/2010 of PRAMOD.T.P. Vs P.K.RAJAN on 31 December 2012

JUDGMENT

The complainant in a prosecution for the offencepunishable under Section 138 of the NegotiableInstruments Act, 1881 (for short 'the N.I.Act') is theappellant as he is aggrieved by the order dated09/06/2010 in S.T.No.188 of 2008 of the court of theJudicial Magistrate of the First Class-IV, Kochi by whichthe learned Magistrate acquitted the accused underSection 256(1) of the Cr.P.C.

2. Heard the learned counsel for the appellant.Though notice is served on the respondent, nobody hasturned up and no objection is raised against allowing thisappeal.

3. The learned counsel for the appellantvehemently submitted that originally the complaint wasfiled before the Chief Judicial Magistrate Court,

Ernakulam on 15/01/2007 and thereafter the case wasmade over to the present trial court on 08/04/2007 andthereafter, after assigning new case number, the casewas posted in the present trial court on 25/10/2008. It isthe further submission of the learned counsel, that,thereafter the appellant was prosecuting the mattereffectively and as the accused did not respond to theprocess issued from the court below, at the instance ofthe complainant coercive steps were taken against himand finally the accused entered appearance on09/11/2009 and only thereafter the case was posted forevidence. It is the further submission of the learnedcounsel that, though the learned counsel for thecomplainant in the trial court has made arrangement torepresent him on 09/06/2010, through another counseland to seek an adjournment to after-lunch for evidence,the same was not materialised due to the fault on the saidcounsel and thus it was under the above circumstancesthe learned Magistrate issued the impugned order and

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hence the counsel submits that there was no negligenceor lapse on the part of the complainant in prosecuting thematter. The learned counsel further submits that,considering the cheque amount involved in the presentcase, one more opportunity may be given to the appellantto prosecute the matter on merit.

4. I have carefully considered the submissionsmade by the counsel for the appellant and I have perusedthe impugned order.

5. Though the learned counsel submitted variousfacts to justify the absence of the complainant or hiscounsel, no material or evidence is produced tosubstantiate the same. At the very same time it isrelevant to note that, though the learned Magistrate hasobserved that the complainant is continuously absent, nodata or materials are referred to in the impugned order.In this juncture, it is relevant to note that, from the causetitle of the impugned order it appears that, so far novakalath is seen filed for and on behalf of the accused. In

Conclusion

the absence of any material or data referred to above,this Court is not in a position to find out whether thecourt below could have proceeded with the trial of thecase, even if the complainant was present on the date ofthe impugned order especially when no effectiveappearance for and on behalf of the accused. It is alsorelevant to note that, though the court has takencognizance for the offence punishable under Section 138of the N.I. Act connected with the dishonour of cheque for`85,000/- based upon the complaint preferred by theappellant, there is no decision on merit. Therefore,according to me, even though there is some lapse on thepart of the complainant, by imposing appropriate terms,one more opportunity can be given to the complainant toprosecute the matter on merit.

In the result, this appeal is disposed of setting asidethe order dated 09/06/2010 of the court of the JudicialMagistrate of the First Class-IV, Kochi in S.T.No.188 of2008 on condition that, the appellant/complainant

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deposits a sum of `1,500/- (Rupees One thousand fivehundred only) in the trial court on or before 01/02/2013.Accordingly, the appellant/complainant is directed toappear before the trial court on 01/02/2013 on whichdate, the learned Magistrate is directed to restore thecomplaint on file and on his satisfaction that theappellant/complainant deposits a sum of `1,500/- (RupeesOne thousand five hundred only) in the court below asdirected above, he is further directed to proceed with thetrial of the case in accordance with the procedure andlaw and dispose of the same on merit. Out of the sum of`1,500/-, `1,000/- shall be given to the accused and theremaining`500/- shall be remitted in the StateExchequer. It is made clear that, if there is any failureon the part of the appellant either in depositing theamount mentioned above within the time or in appearingbefore the court below on the date fixed for hisappearance, this order will stand vacated andconsequently, the above appeal will stand dismissed. In

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case the appellant/complainant complies with the abovedirection and co-operates with the inquiry and trial of thecase, the learned Magistrate is directed to expedite theproceedings and dispose of the case as expeditiously aspossible as the case pertains to the year 2008.

This Criminal Appeal is disposed of as above.

V.K.MOHANAN, JUDGE

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