IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 CRL.A.No. 1064 of 2011() ------------------------ CC.488/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... APPELLANT: COMPLAINANT ------------------------- M/S.GEETHANJALI INVESTMENTS AND KURIES (P)LTD.,A PRIVATE LIMITED COMPANY REGD. UNDER THE COMPANIES ACT,HAVING ITS ADMINISTRATIVE OFFICE AT 1ST FLOOR,LAYAM SQUARE,LAYAM ROAD,ERNAKULAM,REP.BY ITS DIRECTOR,C.C.DINESH,S/O.LATE CHANDRASEKHARAN NAIR,R/AT LOTUS APARTMENTS,D.H.ROAD,ERNAKULAM. BY ADV. SRI.P.M.MOHAMMED SHIRAZ RESPONDENTS: ACCUSED ---------------------- 1. T.NANDAKUMAR, M/S SURYA PHARMA COCHIN(P) LTD., XL/6954, M.G.ROAD, KOCHI-35, PRESENTLY RESIDING AT PADINJATTETHU, VENNALA P.O., ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 1064 of 2011 ---------------------------------------- Dated the 19th day of August, 2011 JUDGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instrument Act is the appellant as the appellant/company is aggrieved by the order dated 31.3.2001 of the court of Judicial First Class Magistrate Court-I, Ernkaulam, in C.CNo.498 of 2000, by which the learned Magistrate acquitted the accused under section 256(1) Cr.P.C. 2. This Court by order dated 20.9.2007 in Crl.L.P.No.813/2007 granted leave to file appeal. It is relevant to note that when the above Crl.L.P was filed , there was a delay of 88 days and this Court condoned the said delay and thereafter the leave petition was entertained and leave was granted. Thus the appellant preferred this present appeal. But the appeal was also a belated one and therefore, along with the appeal, Crl.M.A.No.11108/2008 was filed to condone the delay of 383 days in filing the appeal. This Court by order dated 11.11.2008, holding that the delay is inordinate and enormous, CRL..No.1064/11 2 notice was ordered and by order dated 24.6.2011, this court condoned the above filing delay and hence this appeal. From the endorsement in the file, it appears that process was filed on 31.3.2011 and notice was sent on 2.4.2011 and further it is endorsed that notice returned after service on the Ist respondent, but nobody appeared for the respondent and no objection raised. The counsel for the appellant submitted that the cheque in question covers an amount of Rs.96,000/- and the officer who was prosecuting the complaint left the service and the complainant was not aware of the posting and the proceedings and hence there was no representation on the complaint, which resulted in the impugned order. In the light of the submission made by the learned Counsel for the appellant and from the records, it appears that the cheque in question covers an amount Rs.96,000/- and the court has already taken cognizance for the offence under section 138 of the NI Act on the basis of the complaint preferred by the appellant. But there is no decision on merit. Therefore according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit. But at the CRL..No.1064/11 3 same time, it is relevant to note that the date of the complaint is 19.11.97 and the impugned order was passed on 31.3.2001 and thereafter more than 10 years are over. At the time of filing the leave petition, there was a delay of 88 days and therefore, in filing the appeal also there was a delay of more than one year. From the above facts, it can be safely concluded that there is lapse on the part of the appellant in prosecuting the matter diligently. However, in the light of the finding which I arrived earlier, one more opportunity can be given to the appellant, but only on terms, because of the above negligence on the part of the appellant. In the result, this appeal is disposed of setting aside the order dated 31.3.2001 in C.C.No.488/2000 of the court of Judicial First lass Magistrate-I, Ernakulam on condition that the appellant deposits a sum of Rs.5000/- (Rs.Five thousand only) in the trial court. Accordingly, the complainant is directed to appear before the trial court on 19th September, 2011, on which date, the learned Magistrate is directed to restore the complaint on file and he is further directed to proceed with the complaint, on his satisfaction that the appellant/complainant deposited a CRL..No.1064/11 4 sum of Rs.5000/- on or before the above date, in accordance with the procedure and law and dispose of the complaint on merit. If there is any failure on the part of the appellant in depositing the amount or in appearing before the court below as directed above, this oder will stand vacated and consequently, the appeal will stand dismissed. On deposit of the above amount, and on appearance of the accused, a sum of Rs.2500/- shall be paid to the accused and the remaining amount of Rs.2500/- shall be deposited in the State exchequer. V.K.MOHANAN, JUDGE kvm/- CRL..No.1064/11 5