IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 14TH DECEMBER, 2011 / 23RD AGRAHAYANA ,1933 CRL.A.No. 1043 of 2011 ------------------------------- (AGAINST THE ORDER DTD.26.7.2007 IN C.C.NO.531/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE-IV, (PRINCIPAL MUNSIFF), NEYYATTINKARA) APPELLANT(S): APPELLANT/COMPLAINANT --------------------------------------------------------------- S.JOHNSON, S/O.SIMON, PROPRIETOR, JOHNSON WOOD INDUSTRIES, CONVENT ROAD, PRAVACHAMBALAM, NEYYATTINKARA TALUK. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS(S): ACCUSED & STATE ------------------------------------------------------ 1. S.KOMALAKUMAR, PROPRIETOR, S.K.FURNITURE INDUSTRIES, SHANMUGHA VILASOM, ARAYOOR EAST, MANNANVILAKAM, ARAYOOR P.O., VIA.AMARAVILA, NEYYATTINKARA TALUK. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1043 of 2011 A ---------------------------------------- Dated this the 14th day of December, 2011 J U D G M E N T The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 256(1) of the Code of Criminal Procedure. 2. Counsel for the appellant submitted that the cheque in question covers an amount of `.1,72,300/- based upon which cognizance was taken on the complaint preferred by the appellant and there is no decision on merit. It is also the submission of the learned counsel that though the complaint was filed on 24.8.2004 and cognizance was taken and though notice was ordered, the accused did not appear on the first date of posting i.e., on 6.4.2005. The counsel further submitted that the accused has subsequently appeared only on 15.5.2007, that too after initiating proceedings under Sections 82 and Crl.A.No.1043 of 2011 :-2-: 83 of the Cr.P.C. According to the learned counsel, the impugned order was passed within two months from the date of appearance of the accused. It is also the submission of the learned counsel that on the date of the impugned order, the complainant could not appear as he was laid up and the counsel, who appeared for the complainant in the trial court, was requested to file an application to excuse his absence, but the counsel could not reach in the court in time and consequently, the learned Magistrate passed the impugned order, since neither the complainant nor his counsel was present. The learned counsel submitted that one more opportunity may be given to the complainant to prosecute the matter on merit and to have a decision thereon. In this juncture, it is relevant to note that though there was delay in filing the Crl.Appeal, the delay was condoned as the same was not resisted by the first respondent though he had received notice in the delay petition. From the submission of the learned counsel, it can be seen that the cheque in question covers an amount of Crl.A.No.1043 of 2011 :-3-: `.1,72,300/- and the complainant was prosecuting the matter earnestly though there was a defect on his part in appearing before the court on 26.7.2007. It is also clear from the fact that though cognizance was taken by the court below, there is no decision on merit. Though counsel for the appellant submitted that the appellant had contacted his counsel in the trial court and made arrangements to file application to excuse his absence, no material is produced to substantiate such contention. Having regard to the facts and circumstances involved in the case, particularly, the facts which I indicated above, according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit, but such an opportunity may be given only on terms. 3. In the result, this appeal is allowed setting aside the judgment dated 26.7.2007 in C.C.No.531 of 2005 (C.C.No.860 of 2004) of the Judicial First Class Magistrate Court-IV (Principal Munsiff), Neyyattinkara on condition that the appellant/complainant deposits a Crl.A.No.1043 of 2011 :-4-: sum of `.2000/- (Rupees Two Thousand only) in the trial court within one month from today. Accordingly, the learned Magistrate is directed to restore the complaint on file on 16.01.2012 on which date the appellant/complainant is directed to appear before the trial court either in person or through his counsel and the learned Magistrate, on his satisfaction that the appellant/complainant deposits the above amount, is directed to proceed with the case in accordance with the procedure and dispose of the same on merit. On appearance of the accused, a sum of `.1000/-, out of the amount which would be deposited by the appellant, shall be given to the accused and the remaining `.1000/- (Rupees One Thousand only) shall be deposited in the State Exchequer. As the case pertains to the year 2004, the learned Magistrate is directed to expedite the trial and dispose of the case as expeditiously as possible. This Criminal Appeal is allowed as above MBS/ V.K.MOHANAN,Judge. Crl.A.No.1043 of 2011 :-5-: V.K.MOHANAN, J. Crl.A.No.1043 of 2011 :-6-: CRL.A.No. 434 OF 2003 JUDGMENT Dated:11.11.2011 Crl.A.No.1043 of 2011 :-7-: