IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND NOVEMBER, 2011 / 1ST AGRAHAYANA, 1933 CRL.A.No. 1894 of 2011 ------------------------------- (AGAINST THE JUDGMENT DTD.30.9.2010 IN STC NO.1713/2009 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, CHITTUR) APPELLANT(S)/COMPLAINANT: --------------------------------------------- SASIKUMAR, AGED 46 YEARS, S/O.K.R.VELAYUDHAN, KANDANKULANGARA AYILOOR, CHITTUR. BY ADV. SRI.H.BADARUDDIN RESPONDENTS(S): ACCUSED-STATE ---------------------------------------------------- 1. V.CHENTHAMARA, S/O.VELAYUDHAN, THUMBIKKADU HOUSE, VADAVANNUR, CHITTUR-678504. 2. SATHYABHAMA, W/O.V.CHENTHAMARA, THUMBIKKADU HOUSE, VADAVANNUR, CHITTUR-678504. 3. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN 682031. R3 BY PUBLIC PROSECUTOR SMT.LOWSY. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1894 of 2011 ---------------------------------------- Dated this the 22nd day of November, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 30.9.2010 in S.T.Case No.1713 of 2009 of the court of Judicial First Class Magistrate, Chittur by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. Counsel for the appellant submitted that the cheque in question covers an amount of `.30,000/- and the complainant could not appear before the court below on the date of the impugned order since he was laid up due to chicken pox and the fact was informed to his counsel who was not present in the court, and he failed to bring this matter to the notice of this Court. Therefore, the counsel submitted that one more opportunity may be given to the complainant to prosecute the matter on merit. Crl.A.No.1894 of 2011 :-2-: 3. From the facts stated in the appeal memorandum and from the submission of the learned counsel for the appellant, it appears that the cheque in question covers an amount of `.30,000/- and there is no decision on merit though cognizance was taken for the offence punishable under Section 138 of the N.I.Act connected with the above dishonoured cheque. Though the counsel submitted that the complainant was laid up due to chicken pox, there is no material or evidence and no application was filed on that ground in the trial court. Thus, it can be seen that there are laches on the part of the complainant in appearing before the court especially when the case is posted for the evidence. Under the above factual situation, according to me, the complainant can be granted one more opportunity and have a decision on merit, but such an opportunity can be given only on terms as there was negligence on his part. In the result, this appeal is disposed of setting aside the order dated 30.9.2010 in S.T.Case No.1713/2009 of the court of Judicial Crl.A.No.1894 of 2011 :-3-: First Class Magistrate, Chittur on condition that the appellant/complainant deposits a sum of `.2000/- (Rupees Two Thousand only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court on 22.12.2011 on which date, the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant deposited the above amount and appeared in person or through his pleader, proceed with the case in accordance with the procedure and law and dispose of the same on merit. In case of any default in appearing before the court below and depositing the amount on the date stipulated for the same, this order will stand vacated. In case of depositing the amount, the learned Magistrate is directed to pay a sum of `.750/- each to accused Nos.1 and 2 and the remaining amount of `.500/- shall be deposited in the State Exchequer. As the case pertains to the year 2009, the learned Magistrate is directed to take steps to expedite the trial and dispose of Crl.A.No.1894 of 2011 :-4-: the same as early as possible. This Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ Crl.A.No.1894 of 2011 :-5-: V.K.MOHANAN, J. CRL.A.No. 434 OF 2003 JUDGMENT Dated:11.11.2011 Crl.A.No.1894 of 2011 :-6-: