IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 CRL.A.No. 1007 of 2003() ------------------------ CC.617/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... APPELLANT -------------- DAVID JOHN, PARTNER, MAHIMA RUBBER TECH, EAST MARADI, MUVATTUPUZHA. BY ADV. SRI.PAUL K.VARGHESE RESPONDENTS: ---------------------- 1. P.K. SUDHAKARAN, VARIKKASSERI MADAM, KUTHUKUZHI, KOTHAMANGALAM. R2. STATE OF KERALA, REPRESTNED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.K.SHASHI KUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.S. SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 1007 of 2003 ---------------------------------------- Dated the 5th day of August, 2011 JUDGMENT This appeal is preferred challenging the order dated 2.7.2002 in C.C.No.617 of 1999 of the court of Judicial First Class Magistrate-I, Muvattupuzha, by which the learned Magistrate acquitted the accused under section 256 (1) Cr.P.C in a case instituted upon the complaint preferred by the appellant for the offence under section 138 of the Negotiable Instruments Act. 2. Heard the counsel for the appellant. 3. Learned counsel for the appellant submitted that there was only one posting for evidence on which date, the impugned order was passed as the complainant was absent. It is also the submission of the learned counsel that though the complainant was present on 9.5.2002 and he was ready for adducing evidence, the accused was absent. It is the further submission of the learned counsel that the cheque in question covers an amount of Rs.10,000/-. It can be seen from the back records that notice in the above appeal was taken to the respondent/accused through special messenger. Having regard CRA 1007/03 2 to the facts and circumstances involved in the case, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter and to have a decision on merit. At the same time, it is relevant to note that though the order impugned is dated 2.7.2002 in a case pertained to the year 1999, there is laches on the part of the complainant in prosecuting the matter effectively and to have an earlier disposal of the matter. Therefore, according to me, while granting one more opportunity, it is only just and proper to impose certain conditions. In the result, this appeal is disposed of setting aside the order dated 2.7.2002 in C.C.No.617 of 1999 of the court of Judicial First Class Magistrate-I, Muvattupuzha on condition that the appellant deposits a sum of Rs.1500/- in the trial court. Accordingly, the appellant complainant is directed to appear before the trial court on 6.9.2011 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant has deposited the amount as directed above, proceed with the trial in accordance with the procedure and law and dispose of the complaint on CRA 1007/03 3 merit. On deposit of the above amount, on appearance of the accused, a sum of Rs, 500/- out of the amount deposited, shall be paid to the accused and the remaining amount shall be deposited in the state Ex chequer. V.K.MOHANAN, JUDGE kvm/- CRA 1007/03 4