SHAJIN NADUMURI Vs. SUKESHAN B

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 in C.C.No.2174 of 2006 of the court of the Judicial First Class Magistrate-II, Chalakudy 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 between the same parties, there were two cases in the same trial court and in the other case ie., C.C.No.57 of 2007, the accused was acquitted by the learned Magistrate and therefore, the learned Magistrate herself observed that it is better to file transfer petition to transfer the present case. It is the further submission of the learned counsel that when the case was taken on 11.2.2009, the complainant could not produce the order of transfer, if any and no stay order is also produced and consequently, the learned Magistrate issued the order under Section 256(1) of the Cr.P.C. It is the further submission of the learned counsel that the cheque in question covers an amount of Rs.2 lakhs and against the order of acquittal in the other case, an appeal is pending before this Court. Therefore, the counsel submitted that one more opportunity may be given to the complainant to prosecute the matter on merit.

(3.) FROM the order impugned, it appears that the complainant is regularly absent and though the counsel is present on the date of the impugned order, no application was filed to excuse the absence of the complainant. It is also discernible from the impugned order that the learned Magistrate has recorded that the counsel for the complainant submitted that no T.O.P. is filed. On a careful consideration of the order impugned, according to me, the learned Magistrate wrongly applied his mind and mistakenly exercised the discretionary power under Section 256(1) of the Cr.P.C. If the order under Section 256(1) of the Cr.P.C. is passed solely for the reason that the complainant was regularly absent and no application is filed, one can understand the legality of such order. But, the learned Magistrate has recorded that the counsel submitted that T.O.P. is not filed. So, according to me, it cannot be said that the learned Magistrate has applied his mind while exercising the discretionary jurisdiction under Section 256(1) of the Cr.P.C. It is also a fact that though the court has taken cognizance for the offence punishable under Section 138 of the N.I.Act, based upon the complaint preferred by the appellant, there is no decision on merit. Therefore, according to me, it is only just and proper to grant one more opportunity to complainant to prosecute the matter and to have a decision on merit. Since the complainant was regularly absent, and particularly, the absence on 11.2.2009 was not properly explained, according to me, further opportunity can be given only on terms. In the result, this appeal is disposed of setting aside the order dated 11.2.2009 of the court of Judicial First Class Magistrate- II, Chalakudy in C.C.No.2174/2006 on condition that the appellant/ complainant deposits a sum of Rs.2500/- (Rupees Two Thousand Five Hundred only) in the trial court on on or before 26th July,2012. Accordingly, the appellant/complainant is directed to appear before the trial court on 26.7.2012 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.1500/- shall be given to the 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 2006. This Criminal Appeal is disposed of as above.