IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 CRL.A.No. 615 of 2010() ----------------------------------- ST.741/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT,OTTAPPALAM .................... APPELLANT/COMPLAINANT --------------------------------------- RAMACHANDRAN NAIR, S/O.C.P. BALAKRISHNAN NAIR, PEACE COTTAGE, MUNDAKOTTUKURSSI P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. MR.P.K.MOHANAN (PALAKKAD) RESPONDENTS/ACCUSED AND STATE --------------------------------------------------------- 1. SURESHKUMAR, S/O.ACHUTHAN EZHUTHASSAN, MUTTIKOTTIL HOUSE, MUNDAKKOTTUKURUSI P.O., (VIA) SHORNUR, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. V.K.MOHANAN,J. ------------------------------ Crl.Appeal No.615 of 2010 ----------------------------------------------------- Dated this the 29th day of March, 2010 JUDGMENT By order dated 20.1.2010 in S.T.No.741/2008 of the Court of Judicial First Class Magistrate, Ottapalam, in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, the accused stand acquitted under Section 256(1)Cr.P.C. Therefore this appeal at the instance of the complainant. 2. The learned counsel for the appellant submitted that the case stood posted for evidence for the first time on 20.1.2010 and on that date, the impugned order was issued by the learned Magistrate, in spite of proper application filed for and on behalf of the complainant to condone his absence. The learned counsel submitted that the cheque in question covers an amount of rupees three lakhs and therefore the Magistrate ought not have issued the order due to the absence of the complainant, though the case posted for evidence. 3. I have gone through the impugned order and the only reason stated by the learned Magistrate for the acquittal of the Crl.Appeal No.615 of 2010 2 accused under Section 256(1) of Cr.P.C. is that the complainant was not present for giving the evidence in spite of directions. It is obvious that the impugned order does not reveal any reason to reject the application filed on behalf of the complainant to excuse his absence. It is true that though the application was filed to condone the absence, no material is produced along with the application showing the illness. Therefore, the absence of the complainant in spite of specific direction, persuaded the ,learned Magistrate to issue the impugned order and therefore I find nothing illegal in the impugned order. 4. However, it appears that the cheque in question covers an amount of rupees three lakhs and in the impugned order nothing discernable to show that the complainant is negligent in prosecuting the matter and he had filed an application to excuse his absence which was rejected without any reason. Therefore I am of the view that one more opportunity can be given to the complainant to prosecute the complaint but subject to terms. In the result, this appeal is disposed of setting aside order dated 20.1.2010 on S.T.741/2008 of the Judicial First Class Magistrate Court, Ottapalam, on condition that the Crl.Appeal No.615 of 2010 3 complainant/appellant depositing a sum of Rs.1,500/-. Accordingly the appellant/complainant is directed to appear before the court below on 29.4.2010 on which date the learned Magistrate is directed to restore the complaint on file on satisfaction that the complainant deposit the above amount as directed above and to proceed with the complaint in accordance with law and procedure and to dispose the same on merit. On depositing the amount by the complainant, Rs.750/- shall be given to the accused and Rs.750/- shall be deposited to the state exchequer. Crl.Appeal is disposed of accordingly. V.K.MOHANAN,JUDGE. mns