SIVAN PILAI 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 26.3.2008 in C.C.No.732 of 2004 of the court of Judicial First Class Magistrate-Sasthamkotta, 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 the impugned order was passed when coercive steps against the accused was pending and when the complainant was prosecuting the matter effectively. According to the learned counsel, when the case was posted on 26.3.2008 from 19.3.2008, the clerk attached to the counsel for the complainant in the trial court mistakenly noted down the date as 28.3.2008 instead of 26.3.2008 and it was under the above circumstances, the complainant and his counsel failed to appear before the court below on 26.3.2008 and consequently the impugned order was passed. It is the further submission of the learned counsel that as the amount involved is Rs.90,000/-, one more opportunity may be given to the complainant to prosecute the matter on merit.

(3.) IN the result, this appeal is disposed of setting aside the order dated 26.3.2008 in C.C.No.732 of 2004 of the court of Judicial First Class Magistrate-Sasthamkotta, 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 21.7.2012, 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, the entire sum of Rs.1,000/- shall be deposited in the State Exchequer. As the case pertains to the year 2004, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible. The Criminal Appeal is disposed of as above.