K MOHAMMED FAROOK Vs. S ABDUL GANI RAJA

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 in C.C.No. 39 of 2000 of the court of the Judicial First Class Magistrate, Tirur 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 Rs85,000/- and the court issued the impugned order, when coercive steps were pending against the accused. It is the further submission of the learned counsel that though the complainant and his counsel were absent on the last two posting dates, the complainant was adequately represented on all previous posting dates. According to the counsel, the counsel, who was appearing for the complainant in the trial court, went to attend the court at Manjeri connected with his professional schedule and there was no wilful lapse or negligence on the part of the complainant or his counsel in appearing before the court below. Therefore, the counsel submitted that one more opportunity may be given to the complainant to prosecute the matter on merit.

(3.) LEARNED counsel has produced the B diary proceedings of the trial court which would show that the sworn statement was taken on 1.1.2000 and thereafter, the complainant was absent on three consecutive postings, but he was represented. But, the complainant was absent and there was no representation or no application was filed on 24.2.2001 as well as 27.2.2001. It is also discernible from the proceedings of the court dated 18.11.2000 that bailable warrant was already issued and awaiting return of the same, the case was adjourned. The order impugned is in a printed form which is cryptic in nature and therefore, this Court is not in a position to ascertain whether the learned Magistrate has applied his mind in invoking Section 256(1) of the Cr.P.C. As the cheque is for an amount of Rs.85,000/- and having considered the entire facts and circumstances involved in the case, according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit, but because of lapse on the part of the complainant and his counsel, such opportunity can be given only on terms. In the result, this appeal is disposed of setting aside the order dated 27.2.2001 of the court of Judicial First Class Magistrate, Tirur, in C.C.No.39 of 2000 on condition that the appellant/complainant deposits a sum of Rs.1500/- (Rupees One Thousand Five Hundred only) in the trial court on or before 27.7.2012. Accordingly, the appellant/complainant is directed to appear before the trial court on 27.7.2012 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.1500/- 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. The above sum of Rs.1500/- 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 2000.