IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 CRL.A.No. 1910 of 2011() ------------------------ ST.1120/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... APPELLANT: COMPLAINANT: -------------------------- S.SATHEESAN KUTTY NAIR, AGED 62 YEARS, S/O.SREEDHARAN NAIR, CHOTHI, IRUMPA, ARUVIKKARA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.PADMAKUMAR RESPONDENTS: ACCUSED & STATE: ------------------------------- 1. GEORGE SEBASTIAN @ BABU, S/O.SEBASTIAN, HOUSE NO.487, GOMATHI NAGAR, MADHURA ROAD, THIRUNELVELI P.O., THIRUNELVELI DISTRICT, NOW RESIDING AT PANICHANANICKAL HOUSE, PIZHAKU P.O., KADANATTU VILLAGE, PALA, KOTTAYAM DISTRICT-686 304. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. R2 BY PUBLIC PROSECUTOR SMT. LOWSY THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 1910 of 2011 ---------------------------------------- Dated the 3rd day of November, 2011 JUDGMENT This appeal is preferred at the instance of the complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act as it is aggrieved by the order dated 23.9.2011 of the court of the Judicial First Class Magistrate-III, Thiruvananthapuram, in S.T.No.1120 of 2007, by which the learned Magistrate, acquitted the accused under section 256(1) Cr.P.C. 2. Counsel for the appellant submitted that the appellant/complainant is a senior citizen and he is effectively prosecuting the complaint and the cheque in question covers an amount of Rs.4 lakhs. It is further pointed out by the counsel that on 20.5.2010, though the complainant was absent, he was represented and applied for exemption and then the case was adjourned to 13.10.2010 and from that date to 17.9.2011. According to the learned counsel, because of the long adjournment and posting, the case could not be properly represented on 17.9.2011 and on 23.9.2011. Thus the learned counsel submitted that one more opportunity may be given to the complainant to prosecute the matter on merit. CRA1910/11 2 3. Having regard to the facts and circumstances of the case it can be seen that S.T.No.1120 of 2007 was instituted in the court below on the basis of the complaint for the offence alleged under section 138 of the NI Act in which the cheque in question covers an amount of Rs.4 lakhs. Though cognizance was taken, there is no decision on merit. From the impugned order it appears that no proof affidavit is seen filed and hence the case was adjourned for hearing with a direction to the complainant to be present on 23.9.2011 but on that day also, the complainant was absent. In the light of the facts indicated above, according to me, the interest of justice requires to grant one more opportunity to the complainant to prosecute the matter on merit, but such opportunity can be given only on terms since there was laches on the part of the complainant in prosecuting the matter properly. In the result, this appeal is disposed of setting aside the order dated 23.9.2011 in S.T.No. 1120/2007of the Court of Judicial First Class Magistrate-III, Thiruvananthapuram, on condition that the appellant/complainant deposits a sum of Rs.2000/- (Rs.two thousand only) in the trial court, on or before 7.12.2011. Accordingly, the learned Magistrate is directed to restore the case on 7.12.2011, on CRA1910/11 3 which date the appellant/complainant is directed to appear before the trial court. On satisfaction of the learned Magistrate that the complainant deposits the amount as directed above, the learned Magistrate is further directed to proceed with the case in accordance with the procedure and law and dispose of the same on merit. On deposit of Rs.2000/-, a sum of Rs.1000/- (Rs.one thousand only) shall be paid to the accused on his appearance and the remaining amount of Rs.1000/- shall be deposited in the State Exchequer. V.K.MOHANAN, JUDGE kvm/- CRA1910/11 4