IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 CRL.A.No. 127 of 2005(A) ---------------------------------- (Leave granted as per order dated 11.1.2005 in Crl.L.P.No.28 of 2005) (AGAINST THE ORDER IN CC.2828/2001 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM) ------------------ APPELLANT(S): COMPLAINANT: ---------------------- BHASI K.NAIR, PROPRIETOR,LAXMI TRANSPORTERS,BUILDING NO.VII/602A KUKNDANNOOR, MARADU-682 304. BY ADV. SRI.SIBY MATHEW RESPONDENTS(S): ACCUSED: ------------------------- 1. BERMACO ENERGY SYSTEMS LTD., D-73/1 TC INDUSTRIAL AREA MIDC TURBHE NAVI MUMBAI, REP. BY ITS FINANCE DIRECTOR, MR.VEERAN AHUJA. 2. MR.VEERAN AHUJA, FINANCE DIRECTOR, BERMACO ENERGY STSTEMS LTD. D-73/1 TTC INDUSTRIAL AREA MIDC TURBHE NAVI MUMBAI. *ADDL.R3. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM . * Addl.R3 is impleaded AS PER ORDER DATED 13.6.2005 IN CRL.M.A.NO.9486/2005. ADDL.R3 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 127 of 2005 ---------------------------------------- Dated this the 12th day of July, 2011 J U D G M E N T This appeal is preferred by the complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, challenging the order dated 16.11.2004 in C.C.No.2828 of 2001 of the court of Additional Chief Judicial Magistrate, Ernakulam by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. A learned Judge of this Court granted leave in favour of the appellant by order dated 11.1.2005 in Crl.L.P.No.28 of 2005. 3. The learned counsel for the appellant submitted that the cheque in question covers an amount of `.40,000/- and upon the complaint preferred by the appellant, though the court has already taken cognizance for the offence under Section 138 of the N.I.Act and though the case was posted for appearance of the accused, the accused was acquitted under Section 256(1) of the Cr.P.C., simply on the ground that the complainant and his counsel were absent. 4. From the order impugned, it appears that neither the complainant nor his counsel was present on the date of the impugned order. It is further seen CRL.A.NO. 127 of 2005 :-2-: that the complainant was also absent on 16.8.2004, on which date, as evident from Annexure A2 proceedings of the court below, the accused was also absent. Though an application was filed on behalf of the accused, the same was rejected and issued Non Bailable Warrant against him and accordingly, the case was adjourned to 16.11.2004, on which date, the impugned order is passed. 5. On the basis of Annexure A3 affidavit sworn in by a senior counsel of this Court, who is appearing for the appellant and Annexure A4 affidavit of the Clerk of the counsel, appearing for the complainant in the trial court, it is submitted that though the learned Magistrate adjourned the case to 16.11.2004, it was mistakenly noted down by the clerk of the counsel in the trial court as 16.1.2005 and it was because of the above mistake, neither the complainant nor his counsel was present before the court below on 16.11.2004 and the absence was not due to any negligence or laches. In this juncture, it is pertinent to note that cognizance was taken by the court below as early as on 1.12.2001 and the order impugned was issued on 16.11.2004. However, by order dated 11.1.2005 of this Court, in Crl.L.P.No.28 of 2005, leave was granted to file the appeal. Thus, the above Criminal Appeal comes up for admission only on today. According to me, though cognizance was taken, there is no order on merit and therefore, it is only just and proper to grant one more opportunity to the CRL.A.NO. 127 of 2005 :-3-: complainant to prosecute the matter on merit, but the same can be ordered on terms, since whatever be the reason, there is delay in appeal. In the result, the order dated 16.11.2004 in C.C.No.2828 of 2001 of the court of Additional Chief Judicial Magistrate, Ernakulam is set aside on condition, the appellant/complainant deposits a sum of `.2500/- (Rupees Two Thousand Five Hundred only) in the trial court. Accordingly, the learned Magistrate is directed to restore the complaint i.e., C.C.No.2828 of 2001 on file on 12th August,2011, on which date the appellant/complainant is directed to appear before the trial court and the trial court is further directed to proceed with the complaint in accordance with law and procedure, on its satisfaction that the appellant complies with the condition stipulated in this order, and on further condition that the complainant takes requisite steps including the payment of process fee on his appearance as directed above, in terms of the order dated 16.8.2004 issued by the learned Magistrate as evidenced by Annexure A2 proceedings. On deposit of cost ordered by this Court, a sum of `.1500/- shall be paid to the accused on his appearance and the remaining amount of `.1000/- shall be deposited in the State Exchequer. This Criminal Appeal is allowed accordingly. MBS/ V.K.MOHANAN, Judge. CRL.A.NO. 127 of 2005 :-4-: V.K.MOHANAN, J. CRL.R.P.No. 69 OF 2001 CRL.A.NO. 127 of 2005 :-5-: ORDER Dated:23.6.2011