IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 CRL.A.No.256 of 2008 (B) ------------------------------ ORDER IN CRL.L.P.970/2007 Dated 10/10/2007 ST.1029/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM. .................... APPELLANT: COMPLAINANT -------------------------------- ANOJ S., SWAMIYARMADAM, THIRUNAKKARA, KOTTAYAM. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENTS: ACCUSED & STATE ----------------------------------------- 1. SOBHA RAJAN, W/O. RAJENDRAN NAIR, CHOLLANICKAL HOUSE, PALA P.O., KOTTAYAM. 2. RAJENDRAN NAIR, S/O. V.N.BALACHANDRAN- NAIR, CHOLLANICKAL HOUSE, PALA P.O., KOTTAYAM. 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.TOM JOSE (PADINJAREKARA) PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.256 of 2008 ------------------------------------------------ Dated this the 7th day of April, 2008 JUDGMENT This is appeal filed by the complainant in S.T.1029/06 on the file of the Judicial First Class Magistrate's Court-II, Kottayam assailing the acquittal of the respondents 1 and 2 of offence punishable under Section 138 of the N.I. Act vide Section 256(1) of the Cr.P.C. 2. I have heard the counsel for the appellant, the counsel for respondents 1 and 2 and the Public Prosecutor for R3 and have also perused the lower court records. 3. On perusal of the lower court records, I am convinced that it was for reasons of wanton neglect on the part of the appellant to have his case prosecuted in the court below that the court below disposed of the case acquitting respondents 1 and 2 under Section 256(1) of the Cr.P.C and that what all is Crl. Appeal No.256 of 2008 -2- stated in the order impugned is found to be correct from the records. 4. Counsel for the appellant submits that the amount involved in the cheque is Rs.30 lakhs and that at least one more opportunity be afforded to him to have his case enabled to be considered on merits. I am also of the view considering the stakes involved that an opportunity has to be afforded to the appellant to have his case established on merits but on heavy terms only. 5. In the result, allowing this appeal I set aside the impugned order and remit the case back to the court below for disposal afresh on condition that the appellant deposits an amount of Rs.10,000/- in the court below within one month from today with notice to counsel appearing in the court below for respondents 1 and 2 for payment to respondents 1 and 2 by way of cost. In case cost is so deposited with notice to counsel appearing in Crl. Appeal No.256 of 2008 -3- the court below for respondents 1 and 2 within one month from today, the case shall stand remanded to file of the court below and shall stand posted for evidence to 14/05/08. The appellant and respondents 1 and 2 shall appear in the court below without further notice. It is made clear that the appellant who shall appear in the court below on 14/05/08 shall continue to be present in person on all posting dates of the case hereafter till the case is disposed of afresh by the court below. He shall also comply with any further direction that may be given by the learned Magistrate for the proper progress of the case without fail. Any further laches on the part of the appellant to have his case prosecuted in the court below promptly shall be at his own risk. It is also made clear that in the event of the cost due to respondents 1 and 2 not being deposited within one month from today this appeal shall stand dismissed and Crl. Appeal No.256 of 2008 -4- the further directions for parties to appear in the court below need not be complied with. Registry shall forward the LCR back to the court below forthwith to enable the court below to take up the case on 14/05/08 and the appellant shall produce a copy of this judgment before the trial court on or before 14/05/08 and in any event while depositing the amount of cost ordered. Respondents 1 and 2 shall be entitled to receive the costs if any deposited by the appellant in compliance with the above direction but only on disposal of the case afresh by the court below. 6. This appeal is thus allowed by way of conditional remand. K.P.BALACHANDRAN, JUDGE kns/-