NADUKKARA AGRO PROCESSING CO LTD Vs. MANIKANDAN PILLAI

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 3.3.2008 in C.C.No.739 of 2003 of the court of Judicial First Class Magistrate-Muvattupuzha, 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 cheque in question covers an amount of Rs. 41,634/- and the complainant was prosecuting the matter very effectively. It is the further submission of the learned counsel that originally cognizance was taken in the court of Judicial First Class Magistrate-I, Muvattupuzha, and subsequently as per the order of the Chief Judicial Magistrate-Ernakulam, the case was transferred to the present trial court and the case was posted on 3.3.2008 by assigning a new number and the counsel for the complainant in the trial court failed to take note of the new number assigned to the case. Therefore, there was no representation when the case was taken on 3.3.2008. Hence, the counsel submits that one more opportunity may be given to the appellant to prosecute the matter on merit.

(3.) FROM the B'diary proceedings of the court below, which made available to me by the appellant it appears that cognizance was taken on 5.12.2005 in the court of Judicial First Class Magistrate-I, Muvattupuzha, and the accused entered appearance only on 24.5.2006. Thereafter, the case was being adjourned. Thus on 19.2.2008, the case was transferred to the present trial court as per the order dated 4.2.2008. Thus, the case was posted on 3.3.2008 with a new number as C.C.No.1213 of 2005, whereas the old number was C.C.No.19 of 2008. Therefore, according to me, there is some substance in the submission of the learned counsel for the appellant. But it was for the complainant or his counsel to ascertain from the office of the court about the posting of their case. However, it is relevant to note that though the court has already taken cognizance for the offence punishable under section 138 of the NI Act, on the basis of the complaint preferred by the appellant connected with the dishonour of cheque which covers an amount of Rs. 41,634/-, there is no decision on merit. Having regard to the above facts and circumstances, I am of the view that, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit but subject to terms as there was lapse on the part of the complainant/appellant in appearing before the court below on the date of the impugned order. In the result, this appeal is disposed of setting aside the order dated 3.3.2008 in C.C.No.739 of 2003 of the court of Judicial First Class Magistrate-Muvattupuzha, on condition that the appellant/complainant deposits a sum of Rs. 2,000/- (Rupees Two Thousand only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 6.8.2012, 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. 500/- shall be deposited in the State Exchequer. As the case pertains to the year 2008, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible. The Criminal Appeal is disposed of as above.