Muthoot Leasing and Finance Limited Muthoot Chambers now Known as Muthoot Vehicle and Asset Finance Ltd. vs Sarala Vijayan Vibin Nivas and State of Kerala

Justice V.K. Mohanan

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 since it is aggrieved by the judgment dated 17.09.2011 in C.C.No. 376 of 2009 of the court of Judicial First Class Magistrate-I, Cherthala, by which the learned Magistrate acquitted the accused u/s 256(1) of the Cr.P.C. Heard the counsel for the appellant. I have perused the order of the trial court impugned in this appeal.

The learned counsel for the appellant submits that on the date of the impugned order, the complainant was present and an application was filed seeking further time to adduce evidence, but the learned Magistrate rejected the application and held that no evidence is adduced. It is further submitted by the learned counsel that the complainant wanted to produce certain documents as evidence and it was under that circumstances, further time was sought for. It is also the submission of the learned counsel that the cheque in question covers an amount Rs.28,033/- and one more opportunity may be given to the complainant to prosecute the matter on merit.

From the submissions of the learned counsel and from the facts revealed from the appeal memorandum, it appears that the court has already taken cognizance for the offence punishable u/s 138 of NI Act based upon the complaint preferred by the appellant connected with the dishonour of the cheque for an amount of Rs.28,033/- but there is no decision on merit. It is also relevant to note that the complainant was present on the date of the impugned order and an application moved on behalf of the complainant but the same was rejected. Therefore, it cannot be held that the appellant/complainant was not vigilant in prosecuting the matter. But from the cost title, it appears that the case pertains to the year 2009 and so far no evidence is seen adduced. Therefore, there is laps on the part of the complainant in taking the steps in time. However, having considered the facts and circumstances of the case, according to me, it is only just and proper to grant one more opportunity to prosecute the matter on merit and to have a decision thereon. But such an opportunity can be given only on terms. In the result, this appeal is disposed of setting aside the order 17.09.2011 in C.C.No. 376 of 2009 of the court of Judicial First Class Magistrate-I, Cherthala, on condition that the appellant/complainant deposits a sum of Rs. .1,500/- (Rupees One Thousand Five Hundred only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 16.4.2012, 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, a sum of Rs. .1,000/- , out of the above amount, shall be given to the accused and the remaining amount of Rs. .5,00/- shall be deposited in the State Exchequer. As the case pertains to the year 2009, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible.

The Criminal Appeal is disposed of as above.