IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 CRL.A.No. 1204 of 2011() ------------------------ CC.261/2007 of ADDL. JUDICIAL FIRST CLASS MAGISTRATE COUR-IX, TRIVANDRUM .................... APPELLANT: COMPLAINANT ------------------------- KRISHNAN NAIR,S/O. VIKARAMAN NAIR, AGED 44 YEARS, TC 16/1697(1),ANUGRAHA TIRUMALA PO, VETTAMUKKU,THIRUVANANTHAPURAM. BY ADV. SRI.SABU S.KALLARAMOOLA RESPONDENTS: ---------------------- 1. GOPINATHAN NAIR,S/O.RAGHAVAN PILLAI, TC 18/1999,SETHU MANDIRAM,TRIKKANNAPURAM, TIRUMALA PO, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI P.A. SALIM. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1204 of 2011 ---------------------------------------- Dated the 26th day of September, 2011 JUDGMENT The complainant, in a prosecution for the offence under section 138 of the Negotiable Instruments Act, is the appellant as he is aggrieved by the order dated 3.11.2011 of the court of the Judicial First Class Magistrate-IX, Thiruvananthauram in c.C.No.261 of 2007 by which the learned Magistrate acquitted the accused under section 256(1) Cr.P.C. 2. Learned Counsel for the appellant submitted that the cheque in question covers an amount of Rs.75,000. The court has already taken cognizance for the offence under section 138 of the NI Act upon the complaint preferred by the appellant and the process of recording evidence is already over. It is the further submission of the counsel that the counsel for the complainant in the trial court could not appear before the court below since he was engaged in another court and though arrangement was made to represent him , that was not fulfilled CRLA.1204/11 2 and consequently, the court below acquitted the accused under section 256(1) Cr.P.C. Thus the counsel seeks one ore opportunity to prosecute the matter on merit. Having regard to the facts and circumstances, particularly, the fact that the court has already taken cognizance and the evidence of the complainant is already recorded, there is no evidence for the defence. According to me, it is only just and proper to grant one more opportunity to the complainant and to have a decision on merit, especially, when the cheque in question covers an amount of Rs.75,000/-. But it is pertinent to note that the explanation offered by the counsel for the appellant for the absence of the complainant or his counsel on the date of the impugned judgment, there is no material to substantiate the same. Therefore, according to me, while granting one more opportunity for the complainant to prosecute the matter on merit, the same can be done only on paying cost. In the result, this appeal is disposed of setting aside the judgment dated 3.5.2011 in C.C No.261/2007 of the court of Judicial First Class Magistrate IX, Thiruvananthapuram on CRLA.1204/11 3 condition that the appellant deposits a sum of Rs.1000/- in the trial court, within one month from today. Accordingly, the learned Magistrate is directed to restore C.C.No.261/2007 on 27.0.2011 on which date the complainant is directed to appear before the trial court and the learned Magistrate is further directed, on satisfaction that the complainant deposited Rs.10000/- as directed above, to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused, a sum of Rs.500/- , out of the amount deposited as directed above, shall be paid to the accused and the remaining amount of Rs.500/- shall be deposited in the state Ex chequer. V.K.MOHANAN, JUDGE kvm/- CRLA.1204/11 4 kvm/-