IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 CRL.A.No. 1995 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.997/2011 Dated 08/11/2011 ST.3404/2009 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... APPELLANT(S): -------------- M/S.MULAMOOTTIL CONSUMER CREDITS LTD., HOMESTEAD MUSEUM BAINS COMPOUND, NANDANCODE, TRIVANDRUM-695 002, REP.BY ITS AUTHORISED SIGNATORY- POWER OF ATTORNEY HOLDER SMT.BINU KURIAN, AGED 45, W/O.KURIAN JOHN, BIJI VILLA, THAIKKATUKARA P.O., ALUVA-683 106. BY ADV. SRI.BIJU HARIHARAN RESPONDENT(S): --------------- 1. SATHEESAN, S/O.NARAYANAN, RESIDING AT SALINI BHAVAN, 32/804, TITANIUM P.O., THIRUVANANTHAPURAM-695 001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.LALIZA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl.A.No.1995 of 2011 ------------------------------- Dated this the 24th day of November, 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 22.8.2011 in S.T.No.3404 of 2009 in the court of Judicial First Class Magistrate (Mobile court), Thiruvananthapuram, 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, though the court has taken cognizance for the offence punishable under Section 138 of Negotiable Instruments Act, there is no decision on merit and acquitted the accused under Section 256(1) of Cr.P.C. on the ground that, 'the complainant is regularly absent'. It is pointed out by the learned counsel that, the complainant has already made an application to excuse his absence on the date of the impugned order. Therefore, according to the learned 2 Crl.A.No.1995 of 2011 counsel an opportunity may be given to the complainant to prosecute the matter on merit. 3. From the impugned order it appears that, the complainant was absent inspite of the specific direction given to him to appear on the date of the impugned order. In the impugned order, there is no reference to any application preferred by the complainant to excuse his absence. Though such a contention is taken in the appeal, no material is produced to substantiate the fact that an application was filed in the trial court to excuse the absence of the complainant. However, it appears that the court below has already taken cognizance for the offence punishable under Section 138 of Negotiable Instruments Act, based upon the complaint preferred by the appellant but it is a fact that there is no decision on merit. In the light of the above facts and circumstances involved in the case, according to me, it is only just and proper to grant an opportunity to the appellant to prosecute the matter on merit but such an opportunity can be given only on terms. In the result, this appeal is disposed of setting aside the 3 Crl.A.No.1995 of 2011 order dated 22.8.2011 in S.T.No.3404 of 2009 in the court of Judicial First Class Magistrate (Mobile court), Thiruvananthapuram, on condition the appellant/ complainant depositing a sum of Rs.2,000/- (Rupees two thousand only) in the court below on or before 23.12.2011. Accordingly, the appellant/complainant is directed to appear before the court below on 23.12.2011, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant deposit Rs.2,000/- as directed above, proceed with the trial of the case in accordance with the procedure and law and dispose it on merit. On the appearance of the accused, out of Rs.2,000/-, a sum of Rs.1,000/- shall be paid to the accused and the remaining amount of Rs.1,000/- shall be deposited in the State Exchequer. V.K.MOHANAN, Judge ami/