T.R. Vijayakumar, Thadathumkuzhiyil House, Thirunakkara P.O., Kottayam District vs State of Kerala and Ambili R.

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 he is aggrieved by the judgment dated 21.10.2009 in S.T. No. 1837 of 2008 of the court of Judicial First Class Magistrate-II (Mobile), Kottayam, by which the learned Magistrate acquitted the accused u/s 256(1) of the Cr.P.C. I have carefully considered the submissions made by the counsel for the appellant and the respondent and I have perused the judgment impugned in this appeal.

Learned counsel for the appellant submitted that as the cheque in question covers an amount of Rs. 5 lakhs, one more opportunity may be given to the complainant to prosecute the matter. It is also the submission of the learned counsel that, though it is stated in the impugned order that no proof affidavit was filed by the complainant, in fact, the complainant has filed the proof affidavit on 19.9.2009 with documents. It is thereafter, the case was adjourned to 13.10.2009 and from that date to 21.10.2009, i.e., the date on which the impugned order was passed, as the complainant was absent. According to the complainant, when the case was posted on 21.10.2009, the posting date was mistakenly noted down by the counsel for the complainant in the trial court, as 22.10.2009 and when the case was called up on 21.10.2009, neither the complainant nor his counsel was present. So according to the counsel, there was no negligence on the part of the appellant.

On the other hand, the learned counsel for the respondent, after handing over to me the B diary proceedings of the court below has submitted that, the complainant was regularly absent and he had appeared before the court below only on two days, even though there were 18 effective posting dates. Therefore, the complainant was negligent in prosecuting the matter and therefore the order of the learned Magistrate is perfectly valid and legal and no interference is warranted. In view of the endorsement that contained in the B diary proceedings it appears that, the findings of the court below in para 4 of the impugned order are not correct, since as per the endorsement on 19.9.2009, the complainant has filed proof affidavit with documents. It is thereafter the case was adjourned to 13.10.2009, on which date the complainant was absent. But in the impugned order it is stated that, no proof affidavit is filed though several opportunities were given and according to me, the said observation and findings are not factually correct. It is also relevant to note that though the court has taken cognizance for the offence punishable u/s 138 of the NI Act based upon the complaint preferred by the appellant connected with the dishonour of cheque, which covers an amount of Rs. 5 lakhs, there is no decision on merit. Therefore, according to me, it is only just and proper to grant one more opportunity to the appellant but at the same time, as I indicated earlier, even though there was 18 effective postings of the case, the complainant appears to have present only on two days. Therefore, the complainant is negligent in prosecuting the matter and he is absent on the date of the impugned order. Hence, according to me, further opportunity can be given to the complainant to prosecute the matter on merit only on terms as there was lapse on the part of the complainant/appellant in appearing before the court below on the date of the impugned order.

In the result, this appeal is disposed of setting aside the order dated 21.10.2009 in S.T. No. 1837 of 2008 of the court of Judicial First Class Magistrate-II (Mobile), Kottayam, on condition that the appellant/complainant deposits a sum of Rs. 5,000/- (Rupees Five Thousand only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 20.12.2012, 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, out of Rs. 5,000/-, which would be deposited, a sum of Rs. 3,500/- shall be given to the accused and a sum of Rs. 1,500/- shall be remitted to 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.