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2013 DIGILAW 559 (KER)

Lakshmi Vilas Bank Ltd. v. Mathew

2013-07-04

K.HARILAL

body2013
ORDER : The revision petitioner is the complainant in S.T.No.188/12 on the files of the Judicial First Class Magistrate's Court-IV, Kochi. The above complaint was filed under Sec.138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') against the 1st respondent/accused alleging that he has committed the offence punishable under Sec.138 of the N.I. Act. Originally, the complaint was instituted before the Chief Judicial Magistrate's Court, Ernakulam, and was numbered as M.P.No.955/11. On an affidavit filed by the revision petitioner, the case was taken on file as S.T.No.354/11. The complaint was thereafter posted to 4/7/11 and summons was directed to be issued to the 1st respondent/accused. The petitioner produced the required postal cover with postal stamp for service of summons by registered post on 5/7/11. Thereafter, the case was posted to 17/3/12 and adjourned to 20/7/12 by list. On 20/7/12, the matter was not called. When the revision petitioner's counsel enquired in the court, he was told that the case would be transferred. No date was furnished on the said date; nor was the court diary completed on the said date. Thereafter, since the particulars of the court were not available; nor the petitioner informed of the date of posting of the matter, the revision petitioner bona fide believed that notice would be issued from either of the courts intimating the date of appearance. But unlike the usual practice, which is being followed, no notice was issued to the revision petitioner informing the transfer of the case to the Judicial First Class Magistrate's Court-IV, Kochi. 2. The revision petitioner enquired with the Chief Judicial Magistrate's Court, Ernakulam, on various days thereafter, to find out the posting. Being unable to trace any list, the revision petitioner further enquired as to which records in the court would reveal where the case has been transferred to which they were informed that the S.T. register be seen for information. When verified the S.T. register, it was found that S.T.No.354/11 has been transferred to the Judicial First Class Magistrate's Court-IV, Kochi. Therefore, in the absence of any information transferring the case to the Judicial First Class Magistrate's Court-IV, Kochi, the revision petitioner could not appear before the trial court when the case was called on 23/1/13 and so also, he could not take steps to complete service against the 1st respondent/accused. Therefore, in the absence of any information transferring the case to the Judicial First Class Magistrate's Court-IV, Kochi, the revision petitioner could not appear before the trial court when the case was called on 23/1/13 and so also, he could not take steps to complete service against the 1st respondent/accused. So, on 23/1/13 the trial court dismissed the complaint under Sec.204(4) of the Cr.P.C. for want of steps. This order is challenged in this revision petition. 3. The learned counsel for the revision petitioner advanced arguments in support of her averments in the petition. The learned counsel submits that the revision petitioner would not be found fault with his absence on 23/1/13, in the absence of notice informing the transfer of the case to another court at Kochi. The learned counsel for the revision petitioner further submits that the prosecution was initiated against the 1st respondent/accused for commission of the offence under Sec.138 of the N.I. Act and the allegation is that the cheque for an amount of Rs.50 lakhs drawn and issued by the 1st respondent/accused in favour of the revision petitioner had been dishonoured for want of sufficient fund. 4. Going by the impugned judgment, it could be seen that on 23/1/13 neither the complainant nor the counsel was present. So also, there was no representation for them. No steps were also taken to complete the service of summons against the 1st respondent/accused. However, indisputably, this was a case originally instituted before the Chief Judicial Magistrate's Court, Ernakulam, and subsequently transferred to the Judicial First Class Magistrate's Court-IV, Kochi. However, I am not embarking upon an enquiry on the question whether sufficient notice has been issued to the revision petitioner informing the transfer of the case to the Judicial First Class Magistrate's Court-IV, Kochi. 5. An offence under Sec.138 of the N.I. Act is almost of a civil nature with criminal overtone and imposition of fine payable as compensation would meet the ends of justice. The loss sustained by dishonour of the cheque can be restored by way of compensation. Thus, the compensatory aspect of remedy should be given much priority over punitive aspect. Indisputably, if the revision petitioner is deprived of his right to prosecute the 1st respondent/ accused, certainly, he will be put to irreparable hardship and great loss. Adjudication of a lis on merits is always desirable than dismissal on technicalities also. Thus, the compensatory aspect of remedy should be given much priority over punitive aspect. Indisputably, if the revision petitioner is deprived of his right to prosecute the 1st respondent/ accused, certainly, he will be put to irreparable hardship and great loss. Adjudication of a lis on merits is always desirable than dismissal on technicalities also. In the above view, I am taking a lenient view and the revision petitioner is given a further opportunity to prosecute the 1st respondent/accused. 6. Therefore, I am inclined to set aside the impugned judgment under challenge and I do so. The learned Magistrate shall restore the complaint on files and proceed in accordance with law. The parties shall appear before the trial court on 25/7/2013. This Criminal Revision petition is disposed of as above.