CHRISTINA JOHNSON Vs. STATE OF KERALA

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 11.12.2008 in C.C.No.1587 of 2006 of the court of 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.) HEARD the learned counsel for the appellant as well as the respondent.

(3.) FROM the facts furnished by the counsel for the appellant as well as the respondent, it appears that though the above cases were posted for the cross examination of the complainant, initially on two occasions though the complainant was present, he was not cross examined by the defence. Subsequently, when the case was posted on two occasions, the complainant was not present. So, according to me, the negligence can be attributed against both the appellant as well as the respondent. In this juncture it is relevant to note that the court has taken cognizance for the offence punishable under section 138 of the NI Act based upon the complaint preferred by the appellant in which the cheque in question covers an amount of Rs.1,60,000/- but there is no decision on merit. But it is relevant to note that, there was lapse on the part of the complainant in making himself available for cross examination. Therefore, by imposing appropriate terms, one more opportunity can be given to the complainant to prosecute the matter on merit. In the result, this appeal is disposed of setting aside the order dated 11.12.2008 in C.C.No.1587 of 2006 of the court of Additional Chief Judicial Magistrate (Economic offences)-Ernakulam, on condition that the appellant/ complainant deposits a sum of Rs.2,500/- (Rupees Two Thousand five hundred only) within one month from today, in the trial court. Accordingly, the appellant and the 2nd respondent are directed to appear before the trial court on 10.8.2012, 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/- shall be given to the accused and another sum of Rs.1,000/- shall be deposited in the State Exchequer. As the case pertains to the year 2006, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible. The Criminal Appeal is disposed of as above.