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Judgment
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 22.08.2009 in C.C.No. 921 of 2007 of the court of Judicial First Class Magistrate, Sasthamcotta, 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 learned counsel for the appellant submits that the appellant/complainant has regularly appeared before the court below and on the date of the impugned order, the complainant could not appear as his wife was taken to the hospital and there was no willful laches or omission from the part of the appellant. It is the further submission of the learned counsel that as evidenced by the ''B'' Diary proceedings, on 21.8.2009, the case was posted in the Adalath but as there was no settlement, the case is again posted in the trial court on the next day and for the reason indicated above the complainant could not appear. It is also the submission of the learned counsel as the cheque in question covers an amount of Rs.40,000/-, one more opportunity may be given to the complainant.
I have carefully considered the submissions of the learned counsel for the appellant and I have perused the impugned order. On a perusal of the impugned order, it is not clear, since the same is only in a printed form, whether the learned Magistrate is of the opinion that the complainant was regularly absent or negligent in prosecuting the matter. From the ''B'' Diary proceedings of the court below, it can be seen that the appellant was regularly appearing and the case was posted in the Adalath on 21.08.2009 on which date also the appellant was present. Therefore, it cannot be said that the appellant was negligent in prosecuting the matter. But it is pertinent to note that as per the proceeding dated 21.8.2009, the case was posted from the Adalath in the Court in the presence of the appellant/complainant and he was aware of the posting of the case on 22.8.2009. Though the counsel for the appellant submits that the complainant has contacted his counsel to represent him as he was attending his wife, no material is produced to show that the complainant was unable to attend the Court. However, it is a fact that the court has 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.40,000/-, there is no decision on merit. Therefore, according to me, one more opportunity can be given to the complainant to prosecute the matter and to have a decision on merit. Considering the laches on the part of the appellant/complainant such an opportunity can be given only on terms. In the result, this appeal is disposed of setting aside the order 22.08.2009 in C.C.No. 921 of 2007 of the court of Judicial First Class Magistrate, Sasthamcotta, 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 17.4.2012, 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 or 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. 500/- shall be deposited in 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 .