IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 CRL.A.No. 1734 of 2011 ------------------------------- (LEAVE GRANTED AS PER ORDER IN CRLP.863/2011 Dated 28/09/2011 ST.1131/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA) .................... APPELLANT/PETITIONER: ------------------------------------ JOJI THOMAS MATHAI, KAITHAMANGALATH VEEDU, CHIRAYIRAMBU P.O., MARAMON, THOTTAPPUZHASSERY VILLAGE, KOZHENCHERRY TALUK. BY ADV. SRI.K.JAYARAJ RESPONDENTS: ----------------------- 1. PHILIP MATHEW, MULLAN KUZHIYIL, PULLADU P.O., KIPPURAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1734 of 2011 ---------------------------------------- Dated this the 10th day of October, 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 as he is aggrieved by the judgment of the trial court dated 4.2.2009 in S.T.No.1131 of 2007 by which the learned Magistrate acquitted the accused under Section 256(1) of Cr.P.C. 2. Initially, when the leave petition was filed, there was a delay of 52 days and though notice was issued and received by the first respondent/accused, nobody has turned up and no objection was raised. 3. Though it is stated in the appeal memorandum that the Judicial First Class Magistrate Court-II, Pathanamthitta is functioning for three days in a week in Ranny, no details are given, so as to justify the reasons stated in the memorandum of appeal, for non-appearance CRL.A.NO.1734 of 2011 :-2-: of the complainant or his counsel on 24.12.2008. Even the last posting date of the case is not mentioned, so as to ascertain whether the complainant or his counsel was aware of the posting of the case on 24.12.2008. However, having regard to the facts and circumstances involved in the case, especially when the cheque in question covers an amount of `.75,000/- and considering the fact that there is no decision on merit, in spite of the fact that the court has already taken cognizance for the offence under Section 138 of the N.I.Act, I am of the view that this appeal can be disposed of granting one more opportunity to the complainant to prosecute the matter on merit. But, such an opportunity can be granted on terms, as the appellant has miserably failed to show sufficient and convincing reasons for his absence. In the result, this appeal is disposed of setting aside the judgment dated 4.2.2009 in S.T.No.1131 of 2007 of the court of Judicial First Class Magistrate-II, Pathanamthitta on condition that the appellant/complainant deposits a sum of `.2000/- (Rupees Two CRL.A.NO.1734 of 2011 :-3-: Thousand only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court on 10.11.2011 on which date the learned Magistrate is directed to restore the complaint on file and he is further directed to proceed with the trial of the case on his satisfaction that the complainant deposits the amount as directed above. Since the case pertains to the year 2007, the learned Magistrate is directed to expedite the trial and dispose of the same on merit as expeditiously as possible. On appearance of the accused, out of `.2000/- which is to be deposited by the complainant, a sum of `.1000/- shall be paid to the accused and the remaining amount shall be deposited in the State Exchequer. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1734 of 2011 :-4-: V.K.MOHANAN, J. CRL.A.No. OF 20 CRL.A.NO.1734 of 2011 :-5-: JUDGMENT Dated:2. ..2011