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Judgment
Justice V.K. Mohanan
As the parties in the above three cases are one and the same and the order challenged in these appeals is also one and the same and the facts and circumstances involved in the case are identical, these appeals are being heard together and disposed of by this common judgment. In all the appeals, the challenge is against the common order issued u/s 256(1) of the Cr.P.C. acquitting the accused in a prosecution for the offence u/s 138 of the N.I.Act instituted at the instance of the appellant/complainant. Crl.A.No. 963 of 2009 is filed against S.T.C.No. 2479 of 2007 and Crl.A.No. 964 of 2009 is filed against C.C.No. 460 of 2008 in which cases both the cheques in question cover an amount of Rs. 2,50,000/whereas Crl.A.No. 965 of 2009 is filed against S.T.C.No. 3516 of 2007 in which the cheque amount is Rs. 3 lakhs.
Learned counsel for the appellant submitted that after the filing of the complaints before the trial court, the appellant/complainant has got a job in abroad and therefore, he could not appear before the court below and adduce evidence, when the case was posted for trial in the court below. It is also the submission of the learned counsel that the counsel, who appeared before the trial court, failed to bring those facts to the notice of the trial court and thus, the cases were got adjourned regularly. Thus, after giving seven postings of the cases, the impugned order was passed on the eighth day of posting of the cases, i.e., on 13.2.2009. The counsel for the appellant submitted that the total amount covered by three cheques involved in the above three cases will come to the tune of Rs. 8 lakhs and therefore, an opportunity may be given to the complainant to prosecute the matter on merit and to have a decision thereon. I have carefully considered the submission of the learned counsel for the appellant and I have perused the order impugned in these appeals. In the light of the facts stated in the impugned order, it can be seen that three cheques involved in three cases cover altogether an amount of Rs. 8 lakhs and though the court has taken cognizance in each case, there is no decision on merit. It is also discernible from the order that though during the previous posting dates, the complainant was represented by the counsel, on the date of the impugned order, there was no representation for the complainant. Therefore, I find no fault with the findings of the court below, especially when the case was being adjourned regularly for the evidence of the complainant. Still then, the fact remained is that though cognizance was taken based upon the three complaints filed by the appellant, connected with the dishonour of three cheques for a total sum of Rs. 8 lakhs, there is no decision on merit. Therefore, it is only just and proper to grant an opportunity to the complainant to prosecute the matter on merit and to have a decision thereon, but such an opportunity can be given to the complainant only on terms, especially when the accused is hailing from Bangalore.
In the result, these appeals are disposed of setting aside the joint order dated 13.2.2009 of the court of the Judicial First Class Magistrate, Thalassery in S.T.C.Nos.2479 and 3516 of 2007 and C.C.No. 460 of 2008 on condition that in each case, the appellant/ complainant deposits a sum of Rs. 5000/- (altogether Rs. 15,000/-) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court on 16.04.2012 either in person or through his counsel on which date, the learned Magistrate is directed to restore the complaints on file and on his satisfaction that the appellant/ complainant deposits a sum of Rs. 5000/- in each case (altogether Rs. 15,000/-) in the court below as directed above, he 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 depositing the amount mentioned above in Crl.A.Nos. 963,964 and 965 of 2009 each case within the time or in appearing before the court below on the date fixed for his appearance, this order will stand vacated and consequently, the above appeals will stand dismissed. In case the appellant/complainant complies with the above direction and on the appearance of the accused, out of the sum of Rs. 5000/- in each case, Rs. 3500/- in each case shall be given to the accused and the remaining Rs. 1500/- in each case shall be deposited in the State Exchequer. The learned Magistrate, in case proceeds with trial, is directed to expedite the proceedings and dispose of the cases as expeditiously as possible as the cases pertain to the years 2007 and 2008.
These Criminal Appeals are disposed of as above.