George Joseph vs State of Kerala and Ajikumar

V.K. Mohanan, J.—The complainant in a prosecution for the offence punishable u/s 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 u/s 256(1) of the Code of Criminal Procedure.

Counsel for the petitioner/complainant submitted that the case was originally filed in the court of Chief Judicial Magistrate, Kottayam and subsequently, the case was transferred to the present trial court and the impugned order was passed u/s 256(1) of the Cr.P.C. when the accused has not appeared so far. According to the counsel, the posting of the case on 18.11.2008 is mistakenly noted down as 19.11.2008 and therefore, when the case was called on 18.11.2008, neither the complainant nor his counsel was present. Thus, according to the counsel, there was no wilful laches or negligence on the part of the appellant in appearing before the court below.

It appears that though notice was issued to the first respondent, it is reported that notice returned unserved stating that the addressee left for Bombay one year back. In the light of the manner in which I propose to dispose of this appeal, I am of the view that notice on the respondents can be dispensed with especially when he has not so far appeared in the trial court.

From the submission made by the Learned Counsel for the appellant and from the facts stated in the appeal memorandum, it appears that the cheque in question covers an amount of Rs. 30,000/- and though cognizance was taken upon the complaint preferred by the appellant, there is no decision on merit. Therefore, one more opportunity can be given to the appellant to prosecute the matter on merit. Even though the accused has not entered appearance, from the order impugned, it appears that there was negligence on the part of the complainant in appearing before the court regularly and prosecuting the case effectively. Therefore, according to me, further opportunity can be given only on terms.

In the result, this appeal is disposed of setting aside the order dated 18.11.2008 of the court of Judicial First Class Magistrate, Vaikom in S.T.No. 1785/2007 on condition that the appellant/complainant deposits a sum of Rs. .1000/- (Rupees One Thousand only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court on 02.04.2012 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. .1000/- (Rupees One Thousand 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. The above amount of Rs. .1000/-, which would be deposited by the complainant, 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 proceeds 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.