TAJ RUBBER INDUSTRIES Vs. SHYAM KRISHNA BAJPAI

JUDGEMENT

(1.) THE complainant in a prosecution for the offence u/s.138 of the NI Act is the appellant, as he is aggrieved by the order dated 10.2.2003 of the court of Judicial First Class Magistrate-I, Aluva in CC No.23/1999 by which the learned Magistrate acquitted the accused u/s.256(1) of Cr.P.C.

(2.) THE above appeal is preferred on getting special leave as ordered by this Court on 23.10.2007 in Crl.L.P.No.1114/2007.

(3.) FROM the above submission on the learned counsel for the appellant and from the available materials, it appears that based upon the complaint preferred by the complainant, cognizance has already been taken by the learned Magistrate for the offence u/s.138 of the NI Act in which the cheque covers an amount of Rs.1,25,000/- and instituted CC No.23/1999. Though the date of offence shown as 9.11.98 and the complaint was filed on 6.1.99, the hearing date shown as that of 10.2.2003. FROM the impugned order what can be gathered is that there was two posting date that on 7.2.2003 and 10.2.2003 and the complainant was not present either in person or through pleader and thus the accused is acquitted u/s.256(1) of Cr.P.C.No effective and substanting reason is forthcoming for recording such an acquittal and it is also not discernible whether the accused was present on the date mentioned in the impugned order. It is also not discernible for what purpose the case was posted on 7.2.2003 and 10.2.2003. If the case was posted as a normal or formal posting and not for the purpose of evidence or for any other specific purpose, according to me, l am unable to concur the order passed by the learned Magistrate, especially in the light of the submission made by the learned counsel for the appellant. It can be seen that the court has already taken cognizance, but there is no decision on merit. Therefore, according to me, it is only just and proper to grant an opportunity to the complainant to prosecute the matter on merit, especially when the cheque amount involved is Rs.1,25,000/- and when the accused was not available for the trial. In the result, this appeal is disposed of setting aside the order dated 10.2.2003 in C.C. No.23/1999 of the court of Judicial First Class Magistrate-1, Aluva. Accordingly, the learned Magistrate is directed to restore the case on file on 1.9.2011 on which date, the complainant/appellant is directed to appear before the trial court and co-operate with the court for speedy disposal of the case which pertained to the year 1999 and the learned Magistrate is directed to proceed with the case and dispose the same in accordance with the procedure and law, as expeditiously as possible.