BASHEER Vs. PADMANABHAN N.

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 as he is aggrieved by the order dated 29/09/2004 in S.T. No. 573 of 2004 of the court of the Judicial Magistrate of the First Class-II, Thiruvananthapuram by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. The case of the appellant is that he had preferred a private complaint against the first respondent herein, who is the original accused therein, alleging that the cheque dated 15/11/2002 for an amount of Rs. 1,50,000/- issued towards the discharge of the liability of the accused due to the complainant, dishonoured for want of sufficient fund in the account maintained by the accused and no payment was made in spite of a formal demand and thus, he had committed the offence punishable under Section 138 of the N.I. Act. Thus, S.T. No. 573 of 2004 was instituted in the court of the Judicial Magistrate of the First Class-II, Thiruvananthapuram. It is the further case of the complainant that he had also preferred another complaint against one Viswanathan connected with the dishonour of a cheque for Rs. 1,00,000/- and the said case was filed in the court of the Judicial Magistrate of the First Class-II, Thiruvananthapuram as S.T. No. 585 of 2004 wherein cognizance was taken, which, on transfer, is re-numbered as S.T. No. 267 of 2006 of the Judicial Magistrate of the First Class-VIII, Thiruvananthapuram.

(2.) According to the appellant by an inadvertent omission, in the office of the counsel for the complainant in the trial court, while endorsing the case number in the docket of the case file kept in the office of the counsel, the case numbers of those cases are interchanged. Thus, instead of giving case number as S.T. No. 573 of 2004 in the case against the accused, namely Padmanabhan, case number S.T. No. 585 of 2004 was given and therefore the address of the first respondent/accused remained as same, but when the summons were sent, the same have not gone against the real accused, viz., Viswanathan, but sent to Mr. Padmanabhan. It is the case of the appellant that the case against Viswanathan was settled out of court and therefore the appellant, who is the complainant in that case, did not intend to prosecute that matter. The appellant further says that since the amount was repaid by the said Viswanathan, the entry regarding the payment made by the said Viswanathan was recorded on the case file pertaining to S.T. No. 573 of 2004 instead of S.T. No. 585 of 2004. Therefore, when S.T. No. 573 of 2004 was posted, neither the complainant nor his counsel appeared. Consequently, the learned Magistrate issued the impugned order dated 29/09/2004 in S.T. No. 573 of 2004 by which the accused Padmanabhan, the case against whom was not settled, is acquitted under Section 256(1) of Cr.P.C.

(3.) The learned counsel for the appellant vehemently submitted that the impugned order was issued by the learned Magistrate due to the inevitable consequence of the mistake occurred in the office of the counsel for the appellant in noting down the exact case number assigned in the court below with respect to the corresponding files maintained by the counsel in the trial court. Thus, according to the learned counsel, in fact, the case, in which settlement was arrived, is between the complainant and the said Viswanathan and the case between the complainant and the accused Padmanabhan has not been settled so far. But, due to the mistake crept in the office of the counsel for the complainant, in Viswanathan's case, summons have gone in the name of Padmanabhan who in turn appeared in the case in which Viswanathan is the accused and the said Padmanabhan was released on bail by the court below and his plea was also recorded in that case. It is also the case of the counsel for the appellant that since the case between the complainant and Viswanathan was settled out of court, the complainant did not appear in that case and consequently that accused was also acquitted under Section 256(1) of Cr.P.C. for which the appellant has no grievance. But, in the present case, the case against the accused Padmanabhan, is not settled, but finally the impugned order was issued acquitting Mr. Padmanabhan, who is the accused indebted to the appellant for an amount of Rs. 1,50,000/-. Therefore, the counsel requests for one more opportunity in favour of the appellant to prosecute the matter on merit in S.T. No. 573/2004 of the Judicial First Class Magistrate Court-II, Thiruvananthapuram.