IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 CRL.A.No. 1720 of 2009() ------------------------ CC.685/2004 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT: -------------- K. RAVEENDRAN, VADAKKEVILAKAM, T.P.(JN) 97, PATTOM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS: -------------------- 1. THE STATE OF KERALA REPRESENTED BY THE DIRETOR GENERAL OF PROSECUTION HIGH COURT OF KERALA, ERNAKULAM. 2. GEORGE LAWRENCE, GOVERNMENT CONTRACTOR, T.C. 30/492, KALLUMMODU, ANAYARA, THIRUVANANTHPAURAM. ADV. SRI.NAGARAJ NARAYANAN FOR R2 R1 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 1720 of 2009 ---------------------------------------- Dated the 25th day of August, 2011 JUDGMENT This appeal is preferred at the instance of the complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act as he is aggrieved by the order dated 28.10.2006 of the court of Additional Chief Judicial Magistrate, Thiruvananthapuram in C.C.No.685 of 2004, by which the learned Magistrate, acquitted the accused under section 256(1) Cr.P.C. 2. I have heard Sri R.T Pradeep, the learned counsel appearing for the appellant and Sri Nagaraj Narayan, counsel appearing for the 2nd respondent. 3. Counsel for the appellant submitted that the cheque in question covers an amount of Rs.1,50,000/-. The Counsel submitted that on the date of the impugned order, the complainant reached in the court for appearance in time. But his counsel reached after the case was called and accordingly, there was no representation when the case was called. According to the learned counsel, there was no willful laches or CRLA. 1720/09 2 negligence on the part of the complainant or his counsel to appear before the trial court on the date of the impugned order. 3. It is relevant to note that this Court , by order dated 6.8.2009 in L.P. No.1324 of 2008, leave was granted to prefer the present appeal. From the facts stated in the appeal memo and in the light of the submission of the learned counsel and from the impugned order, it appears that the Cheque in question covers an amount of Rs.1,50,000/- and the court has also taken cognizance for the offence under section 138 of the NI Act based upon the complaint preferred by the appellant herein. Thus, though cognizance was taken, there is no decision on merit. From the impugned order, it can be seen that the order of acquittal is recorded only for the reason of absence of the complainant and for non-representation for him, for a single day, i.e., on the date of the impugned order. Nothing is inferable from the impugned order that the complainant was regularly absent or did not cooperate with the prosecution of the complaint. It is also not discernible from the order that the case was posted for the evidence or for any other specific purpose. It is also a fact that neither the complainant nor his CRLA. 1720/09 3 counsel was present when the case was called. There is no proper explanation from the side of the complainant for his non appearance in the court though he is claimed to have present in the court premises. Counsel for the complainant has also made no arrangement to represent him when the case was called. But no explanation is forthcoming for not making such arrangement. So it can be seen that there is some negligence from the part of the complainant for not appearing in the court when the case was called. However, considering the fact that the amount involved is Rs.1,50,000/- and cognizance was already taken, I am of the view that one more opportunity can be given to the complainant to prosecute the matter. But the same can be done only on terms, because of his negligence. In the result, this appeal is disposed of setting aside the order dated 28.10.2006 in C.C.No.685 of 2004 of the Court of Additional Chief Judicial Magistrate, Thiruvananthapuram, on condition that the appellant/complainant deposits a sum of Rs.2000/-(Rs.two thousand only) in the trial court, within one month from today. The learned Magistrate is directed to restore the complaint on file on 28.9.2011 on which date, the CRLA. 1720/09 4 appellant/complainant is directed to appear before the trial court either in person or through his counsel. On satisfaction that the complainant has deposited the above amount, the learned Magistrate is directed to proceed with the case in accordance with the procedure and law and dispose of the same on merit. On deposit of Rs.2000/-, a sum of Rs.1000/- shall be paid to the accused on his appearance and the remaining amount shall be deposited in the State Exchequer. As the case pertains to the year 2004, of which the date of offence is on 12.6.2003, the learned Magistrate is directed to expedite the trial and dispose of the case as early as possible. V.K.MOHANAN, JUDGE KVM/- CRLA. 1720/09 5 kvm/-