IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 CRL.A.No. 1221 of 2007() ------------------------ CC.323/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... APPELLANT(S): COMPLAINANT: -------------------------- THOMAS VARGHESE, KANNATTU HOUSE, THITAMEL, CHENGANNUR. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR) RESPONDENT(S): ACCUSED: ----------------------- 1. B.JAYAPRAKASH, PUTHENKADAYIL HOUSE, PERINGALA P.O., CHENGANNUR. 2. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.R.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1221 of 2007 ---------------------------------------------- Dated, 14th January, 2009. JUDGMENT This is an appeal preferred by the complainant in a case under section 138 of the N.I.Act as he is aggrieved by the order of the learned Magistrate dated 14.5.2007 in C.C.No.323/2006 acquitting the accused under section 256 (1) Cr.P.C. 2. The complaint was filed on the allegation that the cheque issued by the accused for an amount of Rs.2 lakhs was dishonoured and thereby committed the offence punishable under section 138 of the Negotiable Instruments Act. According to the appellant, the complaint was filed on 17.4.2006 and the same stood posted on 17.5.96 for return of notice. Subsequently, the accused entered appearance on 11.7.2006 and adjourned the matter for further consideration to 12.9.2006 and the case was again adjourned to 10.11.2006 for evidence. According to the appellant, on that day, he could not appear in person but he CRL.A.1221/07 -:2:- was represented through his advocate. According to the appellant, the matter was posted for evidence on the next posting date, i.e. on 6.1.2007 on which date the complainant was present for adducing evidence. But on that day, the case was suo motu adjourned to 7.3.2007. Thereafter the case was again posted to 18.4.2007. According to the complainant, on 18.4.2007, the complainant was absent and he was represented through his advocate and his request for adjournment on medical ground was allowed. Thus the case was adjourned to 14.5.2007. It is the further case of the appellant that he could not present on 14.5.2007 on which date, the impugned order was passed. The learned counsel submitted that on 14.5.2007, the accused was also not present and there was no laches or negligence on the part of the complainant in appearing before the court below on 14.5.2007, but because of his old age problems. Therefore he prays that the appeal may be allowed and an opportunity may be granted to substantiate the allegations by adducing evidence. CRL.A.1221/07 -:3:- 3. Going through the order impugned, it cannot be said that the Magistrate has committed any wrong. But from the facts indicated above, it appears to me that the observation of the court below that the complainant was absent from 3.6.2006 onwards is not correct. However, the amount covered by the cheque in question is Rs.2 lakhs and there is no decision on merit. Therefore, I am of the view that an opportunity can be given to the complainant to substantiate his contentions before the court below. As there was negligence on the part of the complainant in appearing before the court below on 14.5.2007, though it was not wilful, the court below was constrained to pass the impugned order. Thus considering the totality of the facts and circumstances involved in the case, I am of the view that the appeal can be allowed on terms. In the above circumstances, the impugned order dated 14.5.2007 in C.C.No.323/2006 of the Judicial Ist Class Magistrate court-I, Chengannur is set aside on condition that the appellant pays a sum of Rs.500/- to the counsel appearing CRL.A.1221/07 -:4:- for the respondent before this court. The learned Magistrate is directed to restore the complaint on file on 16.2.2009 on which date the complainant as well as the accused are directed to appear before the court below and on his appearance, the appellant/complainant shall file a memo in that court showing the payment of cost as ordered above and on such filing of the memo, the trial court shall proceed with the trial of the case in accordance with law and dispose of the same on merit. V.K.MOHANAN, JUDGE kvm/- CRL.A.1221/07 -:5:- V.K.MOHANAN, J. No.... Judgment/Order Dated: