IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 CRL.A.No. 1218 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.466/2010 Dated 27/05/2010 ST.238/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... APPELLANT(S): COMPLAINANT ------------------------- M/S SREE GOKULAM CHIT & FINANCE CO. PVT. LTD., KOLLAM REPRESENTED BY AUTHORIZED REPRESENTATIVE P.D.MADHU KUMAR. BY ADV. SRI.K.S.BABU RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. MR. NAZARUDEEN, SHA MANZIL, SOUTH MYNAGAPALLY P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.1218 of 2010 ------------------------------- Dated this the 2nd day of July, 2010. J U D G M E N T The challenge in this appeal is against the order issued by the learned Magistrate u/s.256(1) of Cr.P.C. acquitting the accused on a private complaint preferred by the appellant for the offence punishable u/s.138 of Negotiable Instruments Act. 2. The learned counsel for the appellant submitted that, the order of the learned Magistrate is liable to be set aside because the reason stated in the order is factually incorrect and also on the ground that, the cheque in question covers a substantial amount and therefore the learned Magistrate ought to have given an opportunity to prosecute the matter on merit. 3. I have perused the impugned order, from where it can be seen that both the accused as well as the complainant were present when the case was called. It is also discernible from the order that, the case was passed over for taking evidence after the roll call. It is further clear from the order that, the learned Magistrate called the case thrice and at that time there was no Crl. APPEAL No.1218 of 2010 2 application and representation, and therefore the learned Magistrate came into a conclusion that the complainant is not interested in pursuing with the complaint. The above approach of the learned Magistrate can not be approved, especially when the complainant was present at the time of the roll call and the complainant was ready to adduce evidence. There is nothing in the order to hold that the complainant was regularly absent or there is any laches or negligence on his part in adducing evidence. The cheque in question cover for an amount of Rs.10,17,031/-, if that be so, especially when the complainant was present at the time of the roll call, I am of the view that, the learned Magistrate is not justified in acquitting the accused u/s.256(1) of Cr.P.C. However it is to be noted that after the roll call, the case was passed over for evidence and when the case was subsequently called, the complainant was not present and there was no application to excuse his absence and he was not represented also. But that is not a ground to pass an order u/s.256(1) of Cr.P.C. Therefore, I am of the view that the complainant can be granted one more opportunity to prosecute Crl. APPEAL No.1218 of 2010 3 the matter on merit but subject to terms. In the result, this criminal appeal is disposed of setting aside the order dated 4.1.2010 in S.T.No.238/08 of the Court of Chief Judicial Magistrate-Kollam, on condition that the appellant depositing a sum of Rs.3,000/- in the court below and accordingly the complainant is directed to appear before the trial court on 2.8.2010, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction, that the complainant has paid the amount as directed above, the learned Magistrate is further directed to proceed with the complaint in accordance with law and procedure and to dispose the same on merit. On depositing the above amount, a sum of Rs.1,500/- shall be paid to the accused and the remaining amount shall be paid to the State Exchequer. V.K.MOHANAN, Judge. ami/