M P SHOUKATHALI Vs. SHAMSUDIN

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 18.3.2009 in C.C.No.421 of 2007 of the court of Chief Judicial Magistrate-Manjeri, 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.78,000/- and the accused is an advocate, and when the matter was posted in the adalat on 14.3.2009, settlement was arrived thereon and accordingly, both the complainant as well as the accused were remained absent in the adalat, especially due to the paucity of fund with the accused. It is the further case of the counsel that, though there was a posting of the case in the adalat on 14.3.2009, to the surprise of both the complainant and the accused, it is again posted in the trial court on that month itself and that too after 4 days from the date of posting in the adalat. According to the counsel, the complainant and his counsel were under the impression that it will not be posted in the court on the very same month and it was under that factual background, neither the complainant nor his counsel present in the court when the case was taken on 18.3.2009. Therefore, the counsel submits that there was no negligence on the part of the complainant in appearing before the court below and 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 18.3.2009 in C.C.No.421 of 2007 of the court of Chief Judicial Magistrate-Manjeri, on condition that the appellant/complainant deposits a sum of Rs.2,500/- (Rupees Two Thousand Five Hundred only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 25.7.2012, 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, and on the appearance of the accused, a sum of Rs.1,500/- shall be given to the accused and another sum of Rs.1,000/- shall be deposited in the State Exchequer. As the case pertains to the year 2007, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible. The Criminal Appeal is disposed of as above.