Prasanth G. Pillai vs Jyothi,Vishnu Bhavan, Kadambattukonam, Vettiyara P.O., Navaikulam and The State of Kerala

Justice V.K. Mohanan

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 7.12.2010 in S.T. No. 184 of 2009 of the court of Judicial First Class Magistrate-IV, Kollam, 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 judgment of the trial court impugned in this appeal.

The counsel for the appellant submits that the cheque in question covers an amount of Rs. 75,000/- and though the complainant has prosecuted the matter effectively, he could not take steps to issue warrant against the accused as he was not aware of the same. Therefore, the counsel submits that one more opportunity may be given to the complainant to prosecute the matter on merit.

I have considered the submission of the Learned Counsel and I have perused the order impugned. From the impugned order it is crystal clear that, though the complainant was represented, the steps ordered by the trial court was not taken by the complainant, even on the date of the impugned order. It is also a fact beyond dispute that the court has already taken cognizance for the offence punishable u/s 138 of NI Act upon the complaint preferred by the appellant connected with the dishonour of the cheque which covers an amount of Rs. 75,000/-. Having regard to the facts and circumstances involved in the case, according to me, one more opportunity can be given to the complainant to prosecute the matter but such an opportunity can be given only on terms, since there was laches on the part of the complainant in co-operating with the trial and taking steps as ordered by the court.

In the result, this appeal is disposed of setting aside the order dated 7.12.2010 in S.T. No. 184 of 2009 of the court of Judicial First Class Magistrate-IV, Kollam, on condition that the appellant/complainant deposits a sum of Rs. 1500/- (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 28.3.2012, 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. 1000/-, out of the above amount, shall be given to the accused and the remaining amount of Rs. 500/- 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.

Criminal Appeal is disposed of as above.