T J.JOY S/O.LATE JOHN THEROTH HOUSE MUNAMBAM PALLIPORT Vs. STATE OF KERALA REP BY THE PUBLIC PROSECUTOR ERNAKULAM

JUDGEMENT

(1.) AS the parties to the above appeals are one and the same and the facts and circumstances involved in the case are identical and the proceedings in the trial court are together in two separate cases, these appeals are being heard together and disposed of by this common judgment.

(2.) BOTH the appeals are filed challenging the two separate orders issued by the trial court acquitting the accused under Section 256(1) of the Cr.P.C. in a prosecution for the offence punishable under Section 138 of the N.I.Act. Crl.A.No.449 of 2012 is arising out of the order dated 28.12.2011 in C.C.No.1560 of 2010 wherein the cheque in question covers an amount of Rs. 6 lakhs whereas Crl.A.No.452 of 2012 is arising out of the order dated 28.12.2011 in C.C.No.1556 of 2010 which covers an amount of Rs. 6.5 lakhs.

(3.) IN the appeal memorandum, it is specifically stated that the complainant has filed proof affidavit in both the cases on 16.8.2011 and produced 13 documents which were marked as Exts.P1 to P13. From the impugned order, it appears that the accused was acquitted on 28.12.2011 within four months from the date of filing of the proof affidavit and marking the documents on the side of the complainant. According to the submission of the learned counsel, on 4.11.2011, when the case was adjourned to 6.12.2011, the posting date is mistakenly noted as 6.1.2012 by the clerk of the Advocate. Though no material is produced to substantiate the fact, according to me, the finding of the court below that the complainant is not interested in effectively prosecuting the case appears to be incorrect in the light of the fact that the complainant has already filed proof affidavit and marked 13 documents from his side. Under the above factual situation, according to me, the learned Magistrate ought to have granted one more opportunity to the complainant to prosecute the matter on merit, instead of acquitting the accused under Section 256 (1) of Cr.P.C., especially when the learned Magistrate has no opinion that the complainant was protracting the proceedings. At the same time, it is also relevant to note that there were laches on the part of the complainant in appearing before the court on the date fixed for his presence and adducing evidence. However, as I indicated earlier, a sum of Rs. 12.5 lakhs are involved since the cheque in C.C.No.1556 of 2010 covers an amount of Rs. 6.5 lakhs whereas C.C.No.1560 of 2010 covers an amount of Rs. 6 lakhs and though the court took cognizance for the offence punishable under Section 138 of the N.I.Act, there is no decision on merit. Therefore, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit, but by imposing appropriate terms as there were laches on the part of the complainant in appearing before the court below.