At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
For the Appearing Parties: Mahesh V. Ramakrishnan, C.S. Manilal, S. Nidheesh, Santhosh Peter, Advocates.
Judgment Text
1. The appellant is the complainant and the first respondent is the accused in the case S.T.No.52/2017 on the file of the Court of the Special Additional Chief Judicial Magistrate, Thrissur.
2. The aforesaid case is one instituted upon the complaint filed by the appellant against the first respondent for an offence punishable under Section 138 of the Negotiable Instruments Act.
3. The case was originally pending before the Court of the Judicial First Class Magistrate-III, Thrissur. As per the order of the Chief Judicial Magistrate, Thrissur, the case was transferred to the Court of the Special Additional Chief Judicial Magistrate, Thrissur.
4. On 14.06.2017, when the case came up for hearing before the Court of the Judicial First Class Magistrate-III, Thrissur, the learned Magistrate noted the order of the Chief Judicial Magistrate regarding the transfer of the case and directed the parties to appear before the Court of the Special Additional Chief Judicial Magistrate, Thrissur on 07.07.2017.
5. On 07.07.2017, when the case came up for hearing before the Court of the Special Additional Chief Judicial Magistrate, Thrissur, there was no representation for the complainant and the complainant was absent. Therefore, the learned Magistrate dismissed the complaint and acquitted the accused under Section 256(1) Cr.P.C. The order of the learned Magistrate reads as follows:
"The complainant absent. No representation. There is a separate direction from JFCM No.III to appear the Complainant in this court. Even then Complainant did not appear. I think the complainant is not interested to proceed with the case. Hence complaint is dismissed and accused is acquitted u/s.256 Cr.P.C."
The aforesaid order is challenged by the complainant in this appeal.
6. Heard learned counsel for the appellant and also the first respondent.
7. Learned counsel for the appellant contended that there was no notice or intimation given to the complainant from the Court of the Special Additional Chief Judicial Magistrate, Thrissur for appearance before that court and therefore, the complainant was not aware of the date of hearing of the case before that court.
8. There is no basis for the aforesaid submission made by the learned counsel for the appellant. When the case came up for hearing before the Court of the Judicial First Class Magistrate-III, Thrissur on 14.06.2017, the learned Magistrate had specifically directed the parties to appear before the Court of the Special Additional Chief Judicial Magistrate, Thrissur on 07.07.2017. Therefore, it was not necessary to give a fresh intimation or notice to the parties from the Court of the Special Additional Chief Judicial Magistrate, Thrissur regarding the date of hearing or posting of the case before that court.
9. However, considering the fact that the complaint was dismissed and the accused was acquitted under Section 256(1) Cr.P.C on the very first date of hearing before the Court of the Special Additional Chief Judicial Magistrate, Thrissur, I find that an opportunity can be granted to the complainant to prosecute the case against the first respondent/accused on payment of reasonable amount as costs. Considering the facts and circumstances of the case and also considering the fact that the case is of the year 2017, I find that an amount of Rs.5,000/- would be reasonable in this regard.
10. Consequently, the appeal is disposed of as follows: The appeal shall stand allowed and the impugned order shall stand set aside and the case S.T.No.52/2017 shall stand restored to the file of the Court of the Special Additional Chief Judicial Magistrate, Thrissur on the condition that the appellant/complainant shall deposit in that court an amount of Rs.5,000/- (Rupees five thousand only) towards costs to be paid to the first respondent/accused. The appellant shall deposit the amount on or before the date 03.08.2020. If the amount is not deposited by the appellant on or before the aforesaid date, the appeal will stand dismissed and the impugned order passed by the learned Special Additional Chief Judicial Magistrate, Thrissur shall stand confirmed. If the amount is depos
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ited in the court below as directed above, the appellant/complainant shall appear before the Court of the Special Additional Chief Judicial Magistrate, Thrissur on 03.08.2020 through its authorised representative or the counsel. Thereafter, the learned Special Additional Chief Judicial Magistrate, Thrissur shall issue notice to the accused regarding the next date of hearing of the case and proceed with the trial of the case and dispose of it in accordance with law.