IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 CRL.A.No. 27 of 2011() ---------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1177/2010 Dated 08/12/2010 ST.153/2009 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------ P.V.MAHADEVAN, PRAGATHI, JAWAHAR NAGAR- 160, PATTATHANAM, KOLLAM. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT(S): ACCUSED & STATE: --------------------------------------------------------- 1. JESSY NINA PANICKER, W/O.NINAN PANICKER, KUNNUVILA PUTHEN VEEDU, KAKKOLIL, KUNDARA, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.P.GOPAKUMARAN NAIR, SRI.C.S.DIAS, SRI.N.K.SUBRAMANIAN. R2 BY PUBLIC PROSECUTOR SMT. LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl.A.No.27 of 2011 ------------------------------- Dated this the 12th day of December, 2011. J U D G M E N T The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the order dated 29.10.2010 in S.T.No.153 of 2009, of the court of Judicial First Class Magistrate-III, Kollam, by which the learned Magistrate acquitted the accused, in his complaint, under Section 256 (1) of Cr.P.C. 2. The learned counsel for the appellant submitted that, the appellant was presented on 13.10.2010 but there was no sitting and the case was adjourned to 29.10.2010, on which date the impugned order was passed. According to the learned counsel, the appellant had met with an accident and therefore he was not in a position to appear before the court below on 29.10.2010, though the case was posted for evidence as last chance. The learned counsel 2 Crl.A.No.27 of 2011 for the appellant submitted that, as the cheque in question covers an amount of Rs.3 lakhs, one more opportunity may be given to the complainant to prosecute the matter on merit. 3. Learned counsel for the respondent submitted that on previous occasions also, the complainant was absent and the reasons stated by the counsel for the appellant for the absence of the appellant on 29.10.2010 is not supported by any materials or evidence. 4. In the light of the submissions made by the counsels and from the impugned order it appears that, the court has already taken cognizance for the offence punishable under Section 138 of Negotiable Instruments Act, based upon the complaint preferred by the appellant connected with the dishonour of the cheque, which covers an amount of Rs.3 lakhs. But it is beyond dispute that though cognizance was taken, there is no decision on merit. Having regard to the facts and circumstances involved in the case, according to me, eventhough there is laches on 3 Crl.A.No.27 of 2011 the part of the complainant to prosecute the matter earnestly, one more opportunity can be given in favour of the appellant to have a decision on merit. According to me, such an opportunity can be given only on terms. In the result, this appeal is allowed setting aside the order dated 29.10.2010 in S.T.No.153 of 2009, of the court of Judicial First Class Magistrate-III, Kollam, on condition that the appellant/complainant depositing a sum of Rs.1,500/- (Rupees one thousand and five hundred only), within one month from today in the trial court. Accordingly, the appellant is directed to appear before the trial court on 12.1.2012, on which date the learned Magistrate is directed to restore the complaint on file and on the satisfaction of the learned Magistrate that the appellant/complainant deposits the amount as directed above, proceed with the case in accordance with the procedure and law and dispose it on merit. On the appearance of the accused, a sum of Rs.1,000/- (Rupees one thousand only) shall be paid to him, out of the amount 4 Crl.A.No.27 of 2011 which would be deposited by the appellant and the remaining amount of Rs.500/- shall be deposited in the State Exchequer. The accused is also directed to appear before the trial court either in person or through his counsel on 12.1.2012. V.K.MOHANAN, Judge ami/