IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 CRL.A.No. 1842 of 2011() ----------------------------------- CC.98/2008 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... APPELLANT(S): /COMPLAINANT --------------------------------------------- GURUDAYAL.M.P, S/O.PALANIAPPAN, PROPRIETOR, M/S.GURU JEWELLERS, MULLAKKAL, ALAPPUZHA. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): ACCUSED ---------------------------------------- 1. M.P.PURUSHOTHAMAN, MAROTTIPARAMBIL, EAST OF THOPPUVELI, AVALOOKUNNU.P.O, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.LOWSY THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl.A.No.1842 of 2011 ------------------------------- Dated this the 27th day of October, 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 9.6.2009 of the Court of Chief Judicial Magistrate-Alappuzha, in C.C.No.98/08, 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 vehemently submitted that, though the complainant has filed proof affidavit in lieu of his chief examination, the learned Magistrate has acquitted the accused and the said acquittal is illegal, especially when the learned Magistrate failed to consider C.M.P.No.3903/09, which was filed by the complainant to excuse his absence on medical ground. It is the further submission of the learned counsel that, as 2 Crl.A.No.1842 of 2011 the cheque involved in this case covers an amount of Rs.1 lakh, the appellant may be granted an opportunity to prosecute the matter and to have a decision on merit. 3. I have carefully considered the submissions made by the learned counsel. In the light of the submissions made by the counsel and the facts borne out from records, it can be seen that the cheque in question covers an amount of Rs.1 lakh and the court has taken cognizance for the offence under Section 138 of Negotiable Instruments Act, based upon the complaint preferred by the appellant, but there is no decision on merit. It is also relevant to note that, the complainant has filed proof affidavit in lieu of his chief examination. From the impugned order it appears that, the learned Magistrate was constrained to issue such an order because the complainant was absent inspite of the posting as 'either for evidence or for disposal'. Though the counsel submitted that, an application was filed to excuse the absence of the complainant, no document or material is produced to substantiate the above submission. Therefore, 3 Crl.A.No.1842 of 2011 it cannot be said that the learned Magistrate is wrong in his finding and issuing the order under Section 256(1) of Cr.P.C. However, as I indicated earlier, the cheque in question covers an amount of Rs.1 lakh and there is no decision on merit inspite of the fact that cognizance has already been taken. Therefore according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit. But such an opportunity can be given only on terms, since the complainant was absent on the date of the impugned order though the case was posted on that date either for evidence or for disposal. In the result, this appeal is disposed of setting aside the order dated 9.6.2009 in C.C.No.98/2008 of the court of Chief Judicial Magistrate-Alappuzha, on condition the appellant/complainant depositing Rs.2,000/- (Rupees two thousand only) in the trial court, within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court on 28.11.2011, on which date 4 Crl.A.No.1842 of 2011 the learned Magistrate is directed to restore the above case on file and on his satisfaction that the appellant/ complainant deposit Rs.2,000/- as directed above, proceed with the trial in accordance with the procedure and law and dispose the same on merit. On the appearance of the accused, out of Rs.2,000/-, which would be deposited by the complainant, a sum of Rs.1,000/- shall be paid to him and the remaining amount shall be deposited in the State Exchequer. As the case pertains to the year 2008, the learned Magistrate is directed to expedite the trial and dispose the matter as expeditiously as possible. V.K.MOHANAN, Judge ami/