CRL.A/2074/2009 of EKKAL KUNHIRAMAN Vs V.BALACHANDRAN AND THREE OTHERS on 31 December 2012

JUDGMENT

The complainant in a prosecution for the offence punishable under Section 138 of the NegotiableInstruments Act, 1881 (for short 'the N.I.Act') is theappellant as he is aggrieved by the order dated06/08/2009 in C.C.No.1162 of 2007 of the court of theJudicial Magistrate of the First Class-I, Hosdurg by whichthe learned Magistrate acquitted the accused underSection 256(1) of the Cr.P.C.

2. Heard the learned counsel for the appellant.Though notices were ordered against respondents, onlyR2 signed but he is neither present nor represented.Notice to R1 was returned unserved stating thatwhereabouts are not known.

3. Having regard to the facts and circumstancesinvolved and especially in the light of the order which I

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propose to pass in the above appeal and safe-guardingthe interest of the accused, I am of the view that notice tothe respondents' on whom service are not completed canbe dispensed with.

4. The learned counsel for the appellant submittedthat actually the case was specifically posted for theevidence of the complainant only on 27/02/2009, on whichdate it was adjourned to 10/06/2009 and finally to6/8/2009 and on all those days the complainant wasrepresented. It is the further case of the appellant that,on 6/8/2009 the complainant had to attend another casein the Judicial First Class Magistrate Court-II, Hosdurgand therefore, when the present case was taken in thepresent trial court, the agent of the complainant and ajunior counsel attached to the counsel for thecomplainant in the trial court were present and maderepresentation but the same was not heard by the learnedMagistrate and consequently issued the present order.Thus, according to the learned counsel, there was nonegligence from the part of the appellant/complainant in

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prosecuting the matter. It is also the submission of thecounsel that, against the very same accused, severalother cases of similar nature are pending and thus thecounsel submits that one more opportunity may be givento the appellant to prosecute the matter on merit.

5. I have carefully considered the submissionsmade by the learned counsel for the appellant.

6. Though the learned counsel submits severalfacts in support of his challenge against the orderimpugned in this appeal, those submissions are notsupported by any material or evidence. However, it isrelevant to note that, though the learned Magistrate hasstated that the complainant was willfully absent toadduce evidence, according to me, the said observationand finding of the learned Magistrate are not supportedby any data or materials. Though the learned Magistratehas stated, that the case was posted for the evidence ofthe complainant since 24/01/2008, no details are stated.It is also relevant to note that, though the court has takencognizance for the offence punishable under Section 138

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of N.I. Act connected with the dishonour of cheque for anamount of `1,20,000/-, based upon the complaintpreferred by the appellant, there is no decision on merit.In the above circumstances, according to me, eventhough there is some lapse on the part of thecomplainant, one more opportunity can be given to thecomplainant to prosecute the matter on merit but subjectto terms.

In the result, this appeal is disposed of setting asidethe order dated 06/08/2009 of the court of the JudicialMagistrate of the First Class-I, Hosdurg in C.C.No.1162of 2007 on condition that the appellant/complainantdeposits a sum of `2,500/- (Rupees Two 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 `2,500/- (RupeesTwo thousand five hundred only) in the court below as directed 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`2,500/-, `1,000/- each shall be given to accused Nos.1and 2 and the remaining `500/- shall be deposited in theState Exchequer. It is made clear that, if there is anyfailure on the part of the appellant either in depositingthe amount mentioned above within the time or inappearing before the court below on the date fixed for hisappearance, this order will stand vacated andconsequently, the above appeal will stand dismissed. Incase 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 2007.

This Criminal Appeal is disposed of as above.

V.K.MOHANAN, JUDGE