IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 CRL.A.No. 336 of 2011 ------------------------------ (LEAVE GRANTED AS PER ORDER DTD.22.2.2011 IN CRLP.135/2011) (AGAINST THE ORDER IN ST.175/2009 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM) .................... APPELLANT(S): PETITIONER/COMPLAINANT --------------------- N.BALAKRISHNAN PILLAI,PRASANNA NIVAS, KUREEPPUZHA EAST.P.O,KOLLAM WEST. BY ADV. SRI.B.MOHANLAL SRI.SAIJU S. RESPONDENTS(S): ACCUSED AND STATE -------------------------- 1. SARAVANAN,SARASWATHY BHAVAN,35,ANJALI ROAD,SANKER'S NAGAR,KOLLAM DISTRICT,PIN-691001. 2. STATE OF KERALA,REPRESENTELD BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.S.ARUN RAJ FOR R-1 BY PUBLIC PROSECUTOR SMT.LOWSY. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 336 of 2011 ---------------------------------------- Dated this the 25th day of November, 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 19.6.2010 in S.T.No.175 of 2009 of the court of Judicial First Class Magistrate-III, Kollam by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. Heard the counsel for the appellant. I have perused the judgment of the trial court impugned in this appeal. 3. Counsel for the appellant submitted that the counsel for the complainant could not appear before the trial court when the case was taken since he was attending and engaged in a session's trial. According to the learned counsel, the complainant was though present in the court, he did not step into the court as his counsel was absent. It is the further submission of the learned counsel that as the amount CRL.A.NO.336 of 2011 :-2-: involved is `.2 lakhs, one more opportunity may be given to the appellant/complainant to prosecute the matter on merit. 4. Though the counsel for the second respondent was present on 25.10.2011, there is no representation for the second respondent today. 5. Having regard to the facts and circumstances involved in the case, according to me, this appeal need not be retained here and the same can be disposed of granting one more opportunity to the appellant to prosecute the matter on merit. It is beyond dispute that S.T.No.175 of 2009 was instituted upon the complaint preferred by the appellant herein and after taking cognizance for the offence punishable under Section 138 of the N.I.Act. Though cognizance was taken, there is no decision on merit. From the impugned order, it appears that the case was actually posted for the evidence, but the complainant was absent. Even if the counsel for the complainant was engaged in Session's trial, he could have made adequate arrangements CRL.A.NO.336 of 2011 :-3-: to represent himself or the complainant, but that was not done. Therefore, while granting an opportunity to the complainant to prosecute the matter again, adequate terms can be imposed as there was laches on the part of the complainant in appearing before the court, especially, when the case was posted for evidence. In the result, this Criminal Appeal is disposed of setting aside the order dated 19.6.2010 in S.T.No.175 of 2009 of the court of the Judicial First Class Magistrate-III, Kollam on condition that the appellant/complainant deposits a sum of `.2000/- (Rupees Two Thousand only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the court below on 26.12.201, on which date the learned Magistrate is directed to restore the case on file and on his satisfaction that the appellant/complainant deposited `.2000/- as directed above and appeared before the court below, the learned Magistrate is further directed to proceed with the trial of the case in accordance with the CRL.A.NO.336 of 2011 :-4-: 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 paid to him and the remaining amount of `.500/- shall be deposited in the State Exchequer. It is made clear that in case of any failure on the part of the appellant either in appearing before the court below, on the date fixed above in person or through his pleader or in depositing the above amount within the time stipulated, this order will stand vacated and consequently, this appeal will stand dismissed. This Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge. MBS/