IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH SEPTEMBER, 2011 / 6TH ASWINA, 1933 CRL.A.No. 1960 of 2003 -------------------------------- ( LEAVE HAS BEEN GRANTED BY ORDER IN CRLP.391/2003 Dated 24/09/2003 AGAINST ORDER DTD.23.4.2003 IN CC.98/2002 of JUDL. FIRST CLASS MAGISTRATE COURT- V, TRIVANDRUM) .................... APPELLANT(S)/COMPLAINANT: --------------------- M/S.REENA WOOD INDUSTRIES, PULLANIMUKKU, NELLUVILA.P.O., THIRUVANANTHAPURAM REPRESENTED BY KARUNAKARAN, PROPRIETOR. POWER OF ATTORNEY HOLDER, SADASIVAN. BY ADV. SRI.S.RAJEEV SRI.S.RAJEEV RESPONDENTS(S)/STATE AND ACCUSED: -------------------------- 1. STATE OF KERALA -REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM (C.C.NO.98/2002 OF JUDICIAL FIRST CLASS MAGISTRATE-V, (SPECIAL COURT FOR MARKLIST CASES), THIRUVANANTHAPURAM.) 2. P.INDIRA, W/O.SREEDHARAN NAIR, T.C.NO.36/1373, PAZHAYA AMMA VEEDU, J.P.NAGAR, THIRUVANANTHAPURAM. BY ADV. SRI.BIJU BALAKRISHNAN FOR R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R1. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1960 of 2003 ---------------------------------------- Dated this the 28th day of September, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 23.4.2003 in C.C.No.98 of 2002 of the court of Judicial First Class Magistrate-V (Special Court for Marklist Cases), Thiruvananthapuram by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. Heard the counsel for the appellant as well as the respondent. I have perused the judgment under challenge in this appeal. 3. Counsel for the appellant submitted that the cheque in question covers an amount of Rs.1 lakh and the complainant was present on the date of the impugned order, but the learned Magistrate, overlooking the above fact, recorded that the complainant and CRL.A.NO.1960 of 2003 :-2-: counsel were absent. 4. On the other hand, counsel for the first respondent submitted that though the accused, who is a lady, was present, but due to the negligence on the part of the complainant, the trial could not be proceeded. Therefore, in the absence of any proper explanation supported by materials, the negligence on the part of the appellant cannot be condoned and the appeal is liable to be dismissed. 5. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the contesting respondent and I have perused the order impugned. 6. It is beyond dispute that the cheque in question covers an amount of Rs.1 lakh and the court has already taken cognizance for the offence under Section 138 of the N.I.Act, on the basis of the complaint preferred by the appellant. But, from the order impugned, it appears that though the accused was present, the complainant was absent when the case was called initially and therefore, the case was CRL.A.NO.1960 of 2003 :-3-: passed over and when the case is taken after roll call, neither the complainant nor his counsel was present, and hence, the trial court was constrained to proceed under Section 256(1) of the Cr.P.C. and acquitted the accused, accordingly. Though counsel for the appellant submitted that the complainant was present on the date of the impugned order, there is no material to substantiate the above submission. Therefore, it can be safely presumed that there was negligence on the part of the complainant and his counsel in appearing before the trial court and to prosecute the matter. However, it is a fact that though cognizance was taken, there is no decision on merit, in which case the cheque in question covers an amount of Rs.1 lakh. Therefore, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit even though the order impugned in this appeal pertains to the year 2003. But such an opportunity can be granted only on terms since there was negligence on the part of the complainant in appearing CRL.A.NO.1960 of 2003 :-4-: before the court below and co-operating with the trial of the case. In the result, this appeal is disposed of setting aside the order dated 23.4.2003 in C.C.No.98 of 2002 of the court of Judicial First Class Magistrate-V (Special Court for Marklist Cases), Thiruvananthapuram on condition that the appellant/complainant deposits a sum of `.2500/- (Rupees Two Thousand Five Hundred only) within one month from today, in the trial court, failing which this order will stand vacated. Accordingly, the appellant as well as the second respondent/accused are directed to appear before the trial court on 28.10.2011 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposits a sum of `.2500/- as directed above, the learned Magistrate is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused, a sum of `.1500/-, out of the above amount, shall be given to her and the remaining amount CRL.A.NO.1960 of 2003 :-5-: of `.1000/- shall be deposited in the State Exchequer. The Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1960 of 2003 :-6-: V.K.MOHANAN, J. CRL.A.No. OF 20 JUDGMENT Dated:2. ..2011 CRL.A.NO.1960 of 2003 :-7-: