Revision petitioner is the complainant in C.C.No.1541 of 2008, wherein the accused was discharged by the learned Magistrate under Section 245(1) Cr.P.C by order dated 18.1.2011 on the ground that the complainant did not turn up to adduce any pre-charge evidence. The said order is under challenge in this revision.
2. The impugned order shows that the offence involved is only one under Section 138 of N.I Act. There is no question of framing charge, and so there is no question of discharge under Section 245(1) Cr.P.C. To verify what exactly is the offence involved, this Court called for diary extract from the court of the learned Magistrate. The diary extract shows that the case was initially taken on file in the Chief Judicial Magistrate Court, Thrissur as C.C No.376/2004 under Sections 417 and 420 IPC also. Later it was made over to the Court of Judicial First Class Magistrate I, Thrissur for trial. Of course, the case underwent so many postings during trial, and on many occasions one or the other remained absent. Finally, the case came up for pre-charge evidence on 14.12.2010. On the said date the complainant and the accused were absent in court. The learned Magistrate posted the case as further chance for evidence on 18.1.2011. On that day also both the parties remained absent. In such a circumstance, the learned Magistrate discharged the accused under Section 245(1) Cr.P.C, on the ground that the complainant failed to adduce any pre- charge evidence.
3. Of course the impugned order does not show the exact provisions of law involved, besides 138 N.I Act. Section 420 IPC is also involved in this case. That is why order of discharge was passed by the learned Magistrate. Anyway, let the matter be properly and legally considered by the trial court, on evidence.
4. The learned counsel for the revision petitioner made a request to grant some reasonable opportunity to the complainant to adduce evidence, and to prosecute the matter with diligence. A perusal of the diary extract shows that the accused was also absent in court on many occasions, and the trial had to be adjourned due to his absence on many occasions. I find that the impugned order cannot be justified on the ground of consistent absence of the complainant on many occasions. I feel that a reasonable opportunity can be granted to the complainant to prosecute the matter with due diligence and care.
In the result, this revision petition is allowed. The impugned order of the trial court in C.C.No.1541/2008 dated 18.1.2011 is hereby set aside and the matter is remanded to the trial court for fresh procedure, according to law, from the stage at which it was closed, after granting reasonable opportunity to the complainant to adduce evidence under Section 244 Cr.P.C. Inspite of notice the respondent did not turn up to contest this matter. The revision petitioner will appear in the trial court on 21.7.2014. Notice for appearance of accused shall be issued from the trial court, on receipt of records.
P.UBAID JUDGE ab