KRISHNAN AND SONS Vs. MARY AMMA ANTO

JUDGEMENT

(1.) THE complainant in a prosecution for the offence punishable under Section 138 and 142 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') is the appellant since he is aggrieved by the judgment dated 18.10.2010 in C.C. No. 623 of 2008 of the court of Judicial First Class Magistrate -III, Kochi -5, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. Heard the counsel for the appellant and the respondent.

(2.) COUNSEL for the appellant submitted that the case was posted on 16.06.2010, on which date there was no sitting as it was a holiday. It is the further submission of the counsel that though the case is again posted on 18.06.2010, the said posting could not be noted down and when the case was taken on 18.10.2010 neither the appellant nor its counsel was present in the court and consequently issued the impugned order. The counsel submitted that there was no negligence from the part of the complainant or its counsel in appearing in the court below but they failed to appear because of the mistake occurred in noting down the date. Hence, the counsel submitted that one more opportunity may be given to the complainant. On the other hand the counsel for the respondent submitted that though the respondent/accused has not appeared before the trial court, the matter is likely to be settled. I have considered the submissions made by both the counsel for the appellant and the respondent. Though the counsel for the appellant submitted various reasons to justify the absence of the complainant and the counsel on the date of the impugned order, i.e., on 18.10.2010, no material or evidence is produced to substantiate those reasons. Having regard to the facts and circumstances involved in this case, I am of the view that it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit, particularly in the light of the submission made by the counsel for the respondent. However according to me, further opportunity can be given only on condition.

(3.) In the result, this appeal is disposed of setting aside the order dated 18.10.2010 in C.C. No. 623 of 2008 of the court of Judicial First Class Magistrate -III, Kochi -5, on condition that the appellant/complainant deposits a sum of Rs. 2,500/ - (Rupees Two Thousand Five Hundred only) in the trial court on or before 04.02.2013. Accordingly, the appellant is directed to appear before the trial court on 04.02.2013, 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, out of Rs. 2,500/ -, which would be deposited, a sum of Rs. 1,500/ - shall be given to the accused and a sum of Rs. 1,000/ - shall be remitted to 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.