T. Prasannakumar vs Ajayakumar, Pulloottil Textiles and State of Kerala

V.K. Mohanan, J.—The complainant in a prosecution for the offence u/s 138 of the NI Act is the revision Petitioner, as he is aggrieved by the order dated 24.1.2011 in C.C. No. 1217/2006 of the court of Judicial First Class Magistrate Court-IV, Kochi by which the said complaint was dismissed by the learned Magistrate u/s 204(4) of Code of Criminal Procedure, and acquitted the accused.

The learned Counsel submitted that though cognizance was taken there is no decision on merit, in spite of the fact that the complainant has already adduced his evidence and the impugned order was passed when the case was posted for defence evidence and when the accused is absconded.

From the averments contained in the revision Petitioner it appears that the cheque in question covers an amount of Rs. 75,000/- and though originally, the case was filed before the Chief Judicial Magistrate Court, Ernakulam the same was transferred to the Judicial First Class Magistrate Court-IV, Kochi, wherein cognizance was taken and instituted ST. No. 1217/2011. From the averments contained in the revision Petitioner it is further shows that, after taking cognizance the trial was proceed further and the evidence of the complainant was recorded and the same was closed and thereafter the accused was questioned u/s 313 of Code of Criminal Procedure and the case was posted for the defence evidence on 6.4.2010 and thereafter the accused absconded and accordingly, the complainant was directed to take steps to issue process against the accused. The counsel for the Petitioner submitted that as per the proceedings of the courts below, it is the evident that on 11.11.2010 the court has recorded that complaint as taken steps and post the case for return of warrant. It is the further submission of the learned Counsel that though originally, the case was posted on 7.1.2011 it was mistakenly noted down as on 27.1.2011 and hence there was no representation on 7.1.2011 and from which date the case was again adjourned to 24.1.2011 on which date also neither the complainant nor the counsel could present, because of the mistake occurred while noting down the actual date.

In the light of the above facts and circumstances, I am of the view that the complainant was effectively prosecuting the matter and therefore, one more opportunity can be given to the complainant to prosecute the matter on merit and to have a decision on merit but subject to terms.

In the result, this revision petition is disposed of setting aside the order dated 24.1.2011 in S.T. No. 1217 of 2006 of the court of Judicial First Class Magistrate Court-IV, Kochi on condition the Petitioner depositing a sum of Rs. 750/- in the trial court as cost. Accordingly, the complainant is directed to appear before the trial court on 30.6.2011 and on satisfaction of the learned Magistrate that the Petitioner deposit the above amount, the learned Magistrate is further directed to proceed with the complaint in accordance with the procedure and law and dispose the same on merit. The amount which will deposit by the Petitioner shall be deposited in the State Exchequer.

The revision petition is disposed of accordingly.