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. 29 of 2011() ---------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1178/2010 Dated 08/12/2010 ST.501/2010 of CHIEF JUDL.MAGISTRATE COURT, KOLLAM, .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- MURUKAN A, AGED 45 YEARS, S/O.AYYAPPAN ACHARI, SRILEKSHMI, AKKARAVILA NAGAR-21, VADAKKEVILA VILLAGE,KOLLAM. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT(S): ACCUSED & STATE: ---------------------------------------------------------- 1. K.R.PRABIN, KOLOTHU HOUSE, KOORKANCHERY PO,THRISSUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl.A.No.29 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 25.10.2010 in S.T.No.501 of 2010, of the court of Chief Judicial Magistrate, 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 uncle of the appellant had expired on 24.10.2010 and therefore the complainant could not appear before the court, on the posting date, ie., immediately after the death of his uncle, on 25.10.2010 and therefore an application was filed to dispense his personal appearance. According to the counsel, as the cheque in question covers an amount of Rs.4 lakhs an opportunity may be given to the 2 Crl.A.No.29 of 2011 complainant to prosecute the matter and to have a decision on merit. 3. In the light of the submissions made by the counsel for the appellant 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.4 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 the part of the complainant to prosecute the matter earnestly, one more opportunity can be given in favour of the appellant to prosecute the matter and 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 25.10.2010 in S.T.No.501 of 2010, of the court 3 Crl.A.No.29 of 2011 of Chief Judicial Magistrate, Kollam,, on condition that the appellant/complainant depositing a sum of Rs.2,000/- (Rupees two thousand 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 which would be deposited by the appellant and the remaining amount of Rs.1,000/- shall be deposited in the State Exchequer. V.K.MOHANAN, Judge ami/