TAHA MANAGING PARTNER STEEL AGENCIES Vs. PRASAD I

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 since he is aggrieved by the judgment dated 29.7.2010 in S.T.No.92 of 2009 of the court of Judicial First Class Magistrate-III, Kollam, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

(2.) IT is pertinent to note that, as there was delay in filing the leave petition, before granting leave, notice was ordered against the respondent in the delay petition and though a counsel appeared for the respondent in the leave petition, he is not seen present today. The manner in which I proposed to dispose this appeal, I am of the view that, notice to the respondent can be dispensed with, especially when there was appearance for the respondent in the leave petition.

(3.) THOUGH the counsel for the appellant has stated several reasons for the absence of the complainant and the non representation in the trial court, no material is produced to substantiate the above reasons. From the impugned order it appears that as on the date of the impugned order, the case was posted for evidence as last chance and there was a specific direction to the complainant to be present for adducing evidence on that date. The above facts are not controverted by the counsel for the appellant. Therefore, it can be seen that there is lapse on the part of the complainant in appearing before the court below and in obeying the direction issued by the learned Magistrate. However, it can be seen that though the court below has taken cognizance for the offence under section 138 of the NI Act on the basis of the complaint preferred by the appellant connected with the dishonour of cheque for Rs.4 lakhs, there is no decision on merit. Therefore, according to me, one more opportunity can be given to the complainant to prosecute the matter on merit but subject to terms as there was lapse on the part of the complainant/appellant in appearing before the court below on the date of the impugned order. In the result, this appeal is disposed of setting aside the order dated 29.7.2010 in S.T.No.92 of 2009 of the court of Judicial First Class Magistrate-III, Kollam, on condition that the appellant/complainant deposits a sum of Rs.2,500.00 (Rupees Two Thousand Five Hundred only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 22.9.2012, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant depositing the amount as directed above, the learned Magistrate 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. It is made clear that if there is any failure on the part of the appellant either in appearing before the court on the date fixed for his appearance and depositing the above amount within the time stipulated above, this order will stand vacated and consequently this appeal will also stand dismissed. In case the appellant/complainant complies with the above direction, and on the appearance of the accused, a sum of Rs.1,500.00 shall be given to the accused and another sum of Rs.1,000.00 shall be deposited in the State Exchequer. As the case pertains to the year 2009, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible. The Criminal Appeal is disposed of as above.