IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 CRL.A.No. 1694 of 2009() ------------------------ ST.1054/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... APPELLANT: PETITIONER/COMPLAINANT --------------------------------------------------------------- C.GIREESADAS,S/O.CHELLAYYAN,KALA BHAVAN, MANNADI VEEDU,THRUPURAM,NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SARIN RESPONDENTS: STATE & ACCUSED ------------------------------ 1. STATE OF KERALA,REPRESENTED BY P.PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. S.SOMAN,S/O.SREENIVASAN PAINUMMOODU, THEKKETHIL ERAVICHIRRAKIZHAKKU,SOORANADU.P.O, KOLLAM. ADV. SRI.B.MOHANLAL FOR R2 R1 BY P.P. SMT. PUSHPALATHA M.K. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 1694 of 2009 ---------------------------------------- Dated the 23rd day of June, 2010 JUDGMENT The complainant, in a prosecution for the offence under section 138 of the Negotiable Instruments Act, is the appellant. 2. The learned counsel for the appellant submitted that the complainant was absent and he was not represented because the Clerk attached to the counsel in the trial court committed a mistake in noting down the date. It is also submitted that an affidavit is filed along with the leave petition and submitted that the appellant may be permitted to prosecute the matter on merit. 3. The learned counsel appearing for the respondent submitted that the complainant was regularly absent and he had not adduced evidence in spite of specific direction in this regard. 4. I have heard both the counsel and also perused the impugned order and also copy of the affidavit filed before this Court. On a perusal of the materials, it appears that the cheque in question covers an amount of Rs. 7,35,000/-. In the impugned order, the learned Magistrate stated that though the complainant was specifically ordered to be present to adduce evidence, he had failed to comply with the direction. Under the above CRL.A.1694/09 -:2:- circumstances, I find no illegality or irregularity with the observation and finding of the court below. But it is relevant to consider that the cheque in question covers and amount of Rs.7,35,000/-. From the affidavit filed before this court by one S.Murali, claimed to be the clerk of Advocate Sri C.Mohan, Thiruvananthapuram, stated that the case was posted on 16.7.2009. But he noted down the date as 17.7.2009 instead of 16.7.2009. Even if there is no mistake on the part of the clerk in noting down the date and the complainant was absent, the same shall not be a ground to deny opportunity to the complainant to prosecute the matter especially when the cheque in question covers a substantial amount. In the present case the explanation offered and materials produced are sufficient to hold that the complainant deserves to get disposed of the matter on merit. Under the above circumstances, I am of the view that the appellant can be granted one more opportunity to prosecute the matter on merit, but subject to terms. In the result, the appeal is disposed of setting aside the order dated 16.7.2009 in S.T.No.1054/2007 of the court of the Judicial First Class Magistrate-III, Thiruvananthapruam, on condition that the appellant/complainant deposits a sum of CRL.A.1694/09 -:3:- Rs.3000/- in the court below. Accordingly, the appellant is directed to appear before the trial court on 23.7.2010 on which date, the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant deposits a sum of Rs.3000/-, proceed further in accordance with the procedure and law and dispose of the same on merit. Out of Rs.3000/-, a sum of Rs. 1,500/- shall be paid to the accused on his appearance and the remaining amount shall be deposited into the State Exchequer. V.K.MOHANAN, JUDGE kvm/- CRL.A.1694/09 -:4:- O.P.No. JUDGMENT Dated:..