KOMALAM SREEKUMAR Vs. K. THANGAPANDIAN

JUDGEMENT

(1.) THE widow of the original complainant, in a prosecution for the offence punishable under Section 138 of the N.I.Act is the appellant as she is aggrieved by the order dated 19.8.2008 in C.C. No. 1 of 2006 of the court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

(2.) The counsel for the appellant submitted that the cheque in question covers an amount of Rs.50,000/ - and though cognizance was taken, there is no decision on merit. By producing the B Diary proceedings of the court, the counsel for the appellant submitted that the factum of death of the original complainant was brought to the notice of the learned Magistrate of the trial court on 21.7.2008 and accordingly, the case was adjourned to 19.8.2008 for further steps. As the appellant and her daughter were under dismay because of the Crl.A. No. 441 of 2009 sad demise of the complainant, they could not contact the counsel in the trial court and consequently, the counsel could not be represented before the court below on the date of the impugned order and accordingly, the learned Magistrate acquitted the accused. Thus, the counsel submitted that one more opportunity may be given to the appellant to prosecute the matter on merit and to have a decision thereon.

(3.) I have carefully considered the submission made by the Learned Counsel for the appellant. From the facts discernible from the appeal memorandum, it appears that the cheque in question covers an amount of Rs.50,000/ - and though cognizance was taken, based upon the complaint preferred by the husband of the appellant, connected with the dishonour of the above cheque, there is no decision on merit. The original complainant expired on 23.4.2008. By order dated 12.2.2009 in Crl.M.A. No. 1450 of 2009, initially this Court allowed the appellant to file the Crl.L.P. i.e., Crl.L.P. No. 164 of 2009, which was subsequently allowed and thereafter, this appeal is numbered. The accused has not so far appeared in the trial court though the matter is pending before that court right from 2006 onwards. It is also discernible from the B Diary proceedings that coercive steps have already been taken against the accused. In view of the fact that the original complainant had expired and the legal heirs, including the appellant, failed to take further steps to continue the prosecution, I find no fault with the order passed by the learned Magistrate acquitting the accused under Section 256(1) of the Cr.P.C. But the fact remained is that the court took cognizance for the offence punishable under Section 138 of the N.I.Act connected with the dishonour of cheque for an amount of Rs.50,000/ -, and therefore, substantial interest has been accrued on the appellant to proceed with the prosecution for which the order impugned is liable to be set aside, especially when the impugned judgment was issued after the death of original complainant.