V K XAVIER VAZHIKKALAM HOUSE PACHA CHAKKIDIKADU P O ALAPPUZHA Vs. VIKRAMAN K NAIR S/O CHELLAPPAN NAIR KATTOOR KOICKAL HOUSE VEEYAPURAM ALAPPUZHA

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 of acquittal recorded by the trial court under Section 256(1) of the Code of Criminal Procedure.

(2.) COUNSEL for the appellant submitted that the complainant was physically present on all posting dates, but the accused was absconding and hence, coercive steps were issued against him and he appeared only on 14.3.2008. It is also the submission of the learned counsel that as the complainant has to join with his wife, he left for Gulf on 16.4.2008 and therefore, when the case was posted on 3.5.2008, the complainant was represented by his counsel and requested a posting on 24.6.2008 after intimating the fact that the complainant is out of station and therefore, the counsel for the complainant was under the impression that the case will be called only on 24.6.2008, but the same was called on 24.5.2008 on which date the counsel also failed to appear before the court below, for the above reason. Therefore, the counsel submitted that one more opportunity may be given to the complainant to prosecute the matter on merit.

(3.) ON a perusal of the order impugned, it can be seen that the case pertains to the year 2007 and whatever be the reasons submitted by the learned counsel for the appellant for his absence, the same are not substantiated by producing any materials including the B diary proceedings of the court below. But from the order impugned, it cannot be said that the case is posted on the date of the impugned order for any particular purpose or for evidence of the complainant. It is also beyond dispute that there is no decision on merit even though the court took cognizance for the offence under Section 138 of the N.I.Act based upon the complaint preferred by the appellant connected with the dishonour of cheque for Rs. 90,000/-. In the light of the above facts and circumstances, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit, but such opportunity can be given only on terms as there were laches on the part of the complainant in appearing before the court below and prosecuting the matter effectively. 5. In the result, this appeal is disposed of setting aside the order dated 24.5.2008 of the court of Judicial First Class Magistrate, Ambalappuzha in C.C.No.747/2007 on condition that the appellant/ complainant deposits a sum of Rs. 2500/- (Rupees Two Thousand Five Hundred only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court on 14.05.2012 on which date, the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposits a sum of Rs. 2500/- (Rupees Two Thousand Five Hundred only) in the court below as directed above, he 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. Out of the sum of Rs. 2500/-, Rs. 1500/- shall be given to the accused and the remaining Rs. 1000/- shall be deposited in the State Exchequer. It is made clear that if there is any failure on the part of the appellant either in depositing the amount mentioned above within the time or in appearing before the court below on the date fixed for his appearance, this order will stand vacated and consequently, the above appeal will stand dismissed. In case the appellant/complainant complies with the above direction and co-operates with the inquiry and trial of the case, the learned Magistrate is directed to expedite the proceedings and dispose of the case as expeditiously as possible as the case pertains to the year 2007. This Criminal Appeal is disposed of as above.