IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 CRL.A.No. 1973 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.977/2011 ST.168/2010 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... APPELLANT(S): ----------------------- THANKAMANI, BUNGLAVIL VEEDU, MANAYILKULANGARA, MULANKADAKAM, THIRUMALLAVARAM P.O., KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): ------------------------- 1. VENUGOPAL, POONTHOTTATHU VEEDU, MANAYILKADAKAM, THIRUMALLAVARAM P.O., KOLLAM-691 012. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.LALIZA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl.A.No.1973 of 2011 ------------------------------- Dated this the 22nd day of November, 2011. J U D G M E N T The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the order dated 10.6.2010 in S.T.No.168 of 2010 in the court of Judicial First Class Magistrate-III, Kollam, by which the learned Magistrate acquitted the accused, in his complaint, under Section 256 (1) of Cr.P.C. 2. The learned counsel for the appellant submitted that, the cheque in question covers an amount of Rs.1 lakh. According to the learned counsel, originally the complaint was filed in the court of Chief Judicial Magistrate and after taking cognizance, the case was instituted as S.T.No.1009 of 2010 and the complainant was prosecuting the matter very earnestly and even on 18.3.2010, the complainant was present in that court. But according to the learned 2 Crl.A.No.1973 of 2011 counsel, after that, alongwith several other cases this case was also transferred to the present trial court, wherein the case is renumbered as S.T.No.168 of 2010 and according to the learned counsel, though the complainant has approached his counsel in the trial court, there was no proper instruction and according to the complainant, he was told by the counsel that notice will get from the transferee court. I am unable to accept the above contention, since the appellant has no case that the factum of transfer of case and its posting is not notified in the notice board of either in the transferee court or in the transferor court. 3. However, considering the fact that the court has already taken cognizance on the basis of the cheque in question, which covers an amount of Rs.1 lakh and as such there is no merit, I am of the view that, the appellant can be granted one more opportunity to prosecute the matter on merit. In the absence of any convincing and acceptable explanation for the non appearance of the complainant in the court below, according to me, such an opportunity can be 3 Crl.A.No.1973 of 2011 given to the complainant only on terms. In the result, this appeal is disposed of setting aside the order dated 10.6.2010 in S.T.No.168 of 2010 of the court of Judicial First Class Magistrate-III, Kollam, on condition the appellant depositing a sum of Rs.1,500/- in the trial court within one month from today. Accordingly, the appellant is directed to appear before the trial court on 22.12.2011, on which date the learned Magistrate is directed to restore the complaint on file and on his further satisfaction that the complainant/appellant deposit the above amount, proceed with the trial of the case in accordance with the procedure and law and dispose the same on merit. On the appearance of the accused, out of Rs.1,500/- which would be deposited by the appellant, a sum of Rs.1,000/- shall be paid to the accused and the remaining amount of Rs.500/- shall be deposited in the State Exchequer. V.K.MOHANAN, Judge ami/