CHITRA SUBBARAMAN W/O SUBBARAMAN C LAKSHMI UNIVERSITY ROAD CHANGAMPUZHA NAGAR Vs. VISWAS CHITS AND INVESTMENT P LTD REPRESENTED BY ITS MANAGING DIRECTOR COP OFFICE

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 it is aggrieved by the judgment dated 31.12.2008 in C.C.No.701 of 2006 of the court of Additional Chief Judicial Magistrate (E.O.)-Ernakulam, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

(2.) LEARNED counsel after taking me through the B' diary proceedings of the court below, which is produced as Annexure 2 in the leave petition, and also through the details furnished in paragraph 5 of the appeal memorandum, submitted that the complainant was prosecuting the matter effectively and the complainant who is a lady could not appeared before the court below on the date of the impugned order, as she was laid up due to viral fever and her counsel also could not appear before the court as he was involved in a traffic block and thus according to the counsel, there is no wilful laches or negligence on the part of the complainant in appearing before the court below. Counsel submits that one more opportunity may be given to the complainant to prosecute the matter on merit, especially, when the cheque in question covers an amount of Rs.4,58,000/-. The counsel appearing for the 3rd respondent submits that the company is under liquidation and no liability can be fixed upon the 3rd respondent/3rd accused.

(3.) IN the result, this appeal is disposed of setting aside the order dated 31.12.2008 in C.C.No.701 of 2006 of the court of Additional Chief Judicial Magistrate (E.O.)- Ernakulam, on condition that the appellant/complainant deposits a sum of Rs.1,000/- (Rupees One Thousand only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 9.5.2012, 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 her 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, the 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.