UNNIKRISHNAN P N Vs. K C CHANDRASEKHRAN

JUDGEMENT

(1.) THE complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 256(1) of the Cr.P.C., in favour of the accused in his complaint.

(2.) THE case of the appellant/complainant is that the accused borrowed an amount of `.1 lakh from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 20.7.2004 for the said amount and when the said cheque was presented for encashment, the same was dishonoured stating that 'the account closed'. According to the appellant, though statutory notice was issued at the instance of the complainant and received by the accused, no amount is paid and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, the appellant preferred a complaint before the Chief Judicial Magistrate Court Ernakulam, based upon which cognizance was taken and thereafter, the case was made over to the Judicial First Class Magistrate Court-III, Kochi for disposal, wherein the case is received as S.T.No.214 of 2004. THEreafter, the accused entered appearance in the trial court, but the learned Magistrate by the impugned order dated 25.4.2005 in S.T.No.214 of 2004 acquitted the accused under Section 256(1) of the Cr.P.C. It is the above order under challenge.

(3.) I have carefully considered the arguments advanced by the learned counsel. The cheque in question is for an amount of `.1 lakh and the same is dated 20.7.2004. The date of the complaint, which is discernible from the order impugned, is 4.11.2004 and the date of offence is 17.8.2004. The order impugned is not a speaking order. Nothing is discernible from the order, ie., whether the case was posted for evidence or not or whether the complainant was regularly absent or not. It is a fact that the court below has already taken cognizance for the offence under Section 138 of the N.I.Act, but, there is no decision on merit. Therefore, according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit, but only on terms. In the result, this appeal is disposed of setting aside the order dated 25.4.2005 in S.T.No.214 of 2004 of the Judicial First Class Magistrate Court-III, Kochi on condition that the appellant/complainant deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only) in the trial court. Accordingly, the appellant/complainant is directed to appear before the trial court on 23rd September,2011 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant has deposited the amount as directed above, proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. On deposit of the above amount, `.750/- shall be paid to the accused on his appearance and `.750/- shall be deposited in the State Exchequer. The Criminal Appeal is disposed of as above.