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Judgment
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 it is aggrieved by the Order dated 13.8.2009 in ST. No. 575 of 2006 of the court of the Judicial Magistrate of the First Class-IV, Kochi by which the learned Magistrate acquitted the accused u/s 256(1) of the Cr.P.C. I have heard Smt. N. Sudha, counsel for the appellant. As I proposed to dispose of this appeal at the admission stage itself and considering the safeguard proposed to incorporate in the judgment to protect the interest of the accused, I am of the view that notice to the respondent/accused can be dispensed with.
Counsel for the appellant submitted that on the previous posting of the case date that on 23.7.2009, both the complainant as well as his counsel were present and when the case was adjourned and posted on 13.8.2009, it was mistakenly noted as 20.8.2009, by the junior counsel attached to the counsel for the complainant in the trial court and therefore on 13.8.2009 when the case was taken neither the complainant nor its counsel was present. So, according to the counsel, there was no negligence on the part of the complainant or its counsel in not appearing before the court below on the date of the impugned order. As the order impugned is cryptic in nature this court is not in a position to ascertain whether the learned Magistrate has applied his mind in resorting Section 256(1) of the Cr.P.C. and whether the learned Magistrate is of the opinion that the complainant was regularly absent and failed to prosecute the matter. It is also relevant to note that though the court has taken cognizance for the offence punishable u/s 138 of the N.I. Act on the basis of the complainant preferred by the appellant connected with the dishonour of a cheque for Rs. 63,450/-, there is no decision on merit. Therefore, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit but on terms as there was lapse in appearing in the court and prosecuting the case on the date of the impugned order.
In the result, this appeal is disposed of setting aside the Order dated 13.8.2009 of the court of the Judicial Magistrate of the First Class-IV, Kochi in ST. No. 575 of 2006 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 20.4.2013. Accordingly, the appellant/complainant is directed to appear before the trial court on 20.4.2013 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. 2,500/- (Rupees two thousand five hundred 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. Out of the sum Rs. 2,500/-, a sum Rs. 2,000/- shall be given to the accused and the remaining amount of Rs. 500/- shall be remitted 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 2006.
This Criminal Appeal is disposed of as above.