S MOHANAN Vs. C V KRISHNAN

JUDGEMENT

(1.) THE complainant in a prosecution for the offence punishable 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 dated 29.6.2009 in C.C.No. 965 of 2007 of the court of the Judicial First Class Magistrate-I, Hosdurg by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

(2.) LEARNED counsel for the appellant submitted that after taking cognizance for the offence under Section 138 of the N.I.Act based upon the complaint preferred by the appellant connected with the dishonour of cheque, which covers an amount of Rs.95,500/-, process was issued to the accused to appear on 24.11.2007. As the first accused was already in custody connected with some other case, and the second accused remained absent, the case was adjourned to 26.11.2007 and thereafter, the case was adjourned from time to time and ultimately, posted on 17.6.2009 for evidence, but the same was again adjourned to 29.6.2009 as the appellant could not appear before the court. Again on 29.6.2009, the complainant and his counsel could not appear before the court as the exact date of posting of the case was not properly noted down. Therefore, the submission of the learned counsel is that there was no laches or negligence on the part of the complainant in appearing before the court on the date of the impugned order. Hence, the counsel submitted that one more opportunity may be given to the complainant to prosecute the matter.

(3.) THOUGH counsel for the appellant submitted that due to lack of communication from the counsel for the complainant, he could not appear before the court on 17.6.2009 and the clerk attached to the counsel for the complainant in the trial court informed the complainant, the date of next posting as 1.7.2009, instead of 17.6.2009 no material is produced to substantiate the above submission. However, it is a fact that though the court has taken cognizance of the offence connected with the dishonour of cheque for Rs.95,500/-, there is no decision on merit. Therefore, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit, but such an opportunity can be given only on terms, as there was lapse on the part of the complainant in prosecuting the matter effectively and the explanation for his absence on 29.6.2009 is not acceptable in the absence of any material. In the result, this appeal is disposed of setting aside the order dated 29.6.2009 of the court of Judicial First Class Magistrate-I, Hosdurg in C.C.No.965/2007 on condition that the appellant/ complainant deposits a sum of Rs.2500/-(Rupees Two Thousand Five Hundred only) in the trial court on or before 27th July,2012. Accordingly, the appellant/complainant is directed to appear before the trial court on 27th July,2012 on which date, the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/ complainant deposits a sum of Rs.2500/- in the court below as directed above, he is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. Out of the sum of Rs.2500/-, Rs.750/- each shall be given to the first and second accused and the remaining Rs.1000/- shall be deposited in the State Exchequer. It is made clear that if there is any failure on the part of the appellant either in depositing the amount mentioned above within the time or in appearing before the court below on the date fixed for his appearance, this order will stand vacated and consequently, the above appeal will stand dismissed. In case the appellant/complainant complies with the above direction and co-operates with the inquiry and trial of the case, the learned Magistrate is directed to expedite the proceedings and dispose of the case as expeditiously as possible as the case pertains to the year 2007. This Criminal Appeal is disposed of as above.