Sriram Transport Finance Co. Ltd. vs K.T. Sajimon and State of Kerala

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 since he is aggrieved by the order dated 06.06.2009 in S.T. No. 2211 of 2008 of the court of Judicial Magistrate of First Class-II (Mobile), Kottyam, by which the learned Magistrate acquitted the accused u/s 256(1) of the Cr. P.C. The counsel for the appellant submitted that the cheque in question covers an amount of Rs. 1,00,504/- and it is the further submission of the counsel that though the counsel for the appellant was present in the court below he could not attend the case since there occurred a mistake in calling the exact case number. Thus according to the learned counsel there was no negligence or default on the side of the complainant/appellant. Therefore, the counsel submitted that one more opportunity may be given to the complainant. On the other hand counsel for the respondent submitted that no details are given in the appeal memorandum about the postings of the case etc. Therefore, the counsel submitted that the absence of the complainant on 06.06.2009, i.e., on the date of the impugned order, is not properly explained. It shows that there was negligence on the part of the complainant.

I have carefully considered the submissions of the counsel for the appellant and respondent. The order impugned in this appeal only cryptic in nature and therefore this Court is not in a position to ascertain whether the learned Magistrate has applied his mind in invoking Section 256(1) of Cr. P.C. From the impugned order it cannot be seen that the complainant was negligent and regularly absent during the trial of the case. As rightly pointed out by the counsel for the respondent no evidence or material is produced by the appellant to substantiate his claim that the case was not properly called on the date of the impugned order. However, it is beyond dispute that though the court has taken cognizance for the offence punishable u/s 138 of the Negotiable Instruments Act connected with the dishonour of the cheque for Rs. 1,00,504/- based upon the complaint prepared by the appellant. There is no decision on merit. But it is a fact that there was negligence on the part of the complainant, in appearing before the court below and prosecuting the matter on the date of the impugned order. Thus having regard to the entire facts and circumstances involved in the case, by imposing appropriate terms, this appeal can be disposed of granting one more opportunity to the complainant.

In the result, this appeal is disposed of setting aside the order dated 06.06.2009 in S.T. No. 2211 of 2008 of the court of Judicial First Class Magistrate II (Mobile), Kottayam and remanded the matter to the trial court for fresh disposal on condition the petitioner depositing a sum of Rs. 3,500/- (Rupees three thousand and five hundred only) in the trial court on or before 19.04.2013. Accordingly, the learned Magistrate is directed to take up the complaint and restore the same on 19.04.2013 on which date the appellant/complainant is directed to appear before the trial court. Accordingly, on the satisfaction of the learned Magistrate that the appellant present in the court and that he had deposited Rs. 3,500/- (Rupees three thousand and five hundred only) as directed above, the learned Magistrate is directed to proceed with the trial of the case from the stage at which the same was disposed, in accordance with the procedure and law. 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, out of Rs. 3,500/-, which would be deposited, a sum of Rs. 2,500/- shall be given to the accused and a sum of Rs. 1,000/- shall be remitted to the State Exchequer. As the case pertains to the year 2008, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible.

The Criminal Appeal is disposed of as above.