KARUNAKARAN K. Vs. K.R. BALU AND ORS.

JUDGEMENT

(1.) Appellant is the complainant in S.T. No. 330 of 2010 on the file of the Judicial First Class Magistrate-X, Thiruvananthapuram. The parties to this appeal for convenience will hereinafter be referred to in accordance with their respective status in the complaint. The complaint was filed against the first respondent alleging commission of the offence under Section 138 of the Negotiable Instruments Act, 1881, (for short, the "Act") before the Judicial First Class Magistrate-Ill, Thiruvananthapuram and it was taken on file by the said Magistrate as S.T. No. 549 of 2008. The allegation was that two cheques issued by the first respondent to the complainant towards discharge of the monetary liability of Rs. 2,01,890/- were not honoured on presentation before the bank for encashment due to insufficiency of funds in the account, maintained with the bank. Demand was made through lawyer notice, but, due to want of response by reply notice or payment, the complaint in question was filed. It is the case of the complainant that, the complaint, which was filed before the Judicial First Class Magistrate-Ill, Thiruvananthapuram, though taken on file as S.TNo.549 of 2008, was later on transferred on administrative reasons to the Court of the Judicial First Class Magistrate-X, Thiruvananthapuram, without the factum of transfer being informed to the complainant or his counsel. It is also the grievance of the complainant that, after the transfer, the case was scheduled for appearance of the complainant, to 9.2.2011, a much later date. Since the factum of transfer was not within his knowledge, he could not appear before the latter court on three successive posting dates. On the third posting date when the case was posted for recording the evidence of the complainant for want of his presence before the court to let in evidence, the learned Magistrate was pleased to acquit the accused consequently. Heard Sri. S. Rajeev, learned counsel for the complainant. Sri. S. Anil. who laid vakalath for the accused did not turn up. According to Sri. S. Rajeev. the act of the learned Magistrate, posting the case to a much later date, without the factum of the transfer of the case informed to the complainant or his counsel and dismissal of the complaint on the third occasion for his non-appearance, caused much prejudice to the complainant. It is further submitted that, the non-consideration of the complaint on merits has also resulted in prejudice to him. According to him, the learned JFCM-X. Thiruvananthapuram ought to have taken measures to inform the complainant or his counsel about the posting of the case after the transfer. According to him, the JFCM-X. Thiruvananthapuram ought to have adverted to the fact that the complainant was vigilantly prosecuting the complaint in question for the preceding two years prior to the transfer without fail.

(2.) It is the grievance of the complainant that, his case which was originally on the file of JFCM-III, Thiruvananthapuram was transferred therefrom to JFCM-X. Thiruvananthapuram; without the factum of transfer made known to him and therefore. he was prevented from attending the latter court and his absence for three successive posting dates before the latter court culminated in the passing of the impugned order to his disadvantage. According to Sri. S. Rajeev, the complainant was vigilant in prosecuting the case prior to the transfer of the same to JFCM-X, Thiruvananthapuram and that is discernible from the proceedings therein. Sri. S. Rajeev, the learned counsel for the complainant has addressed this Court stating that had the learned Magistrate now in seizin of the case adverted to the proceedings prior to the transfer of the same to his file, the order under challenge would not have been passed.

(3.) The records of the case have been summoned. The impugned order is perused. The relevant portion of the said order reads:--