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. 1802 of 2011() ------------------------ ST.2306/2009 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... APPELLANT: -------------- RAJEEVU R, S/O.RAMAKRISHNAN, NELLIKUNNEL VEEDU,NELOOR,KOTTAYAM BY ADV. SRI.S.PRASANTH RESPONDENTS: ---------------------- 1. M.K.ANILKUMAR, S/O.KUTTAPPAN, MUDANTHIYANI VEEDU,KURUMANNU, KADANADU,KOTTAYAM 685 001 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682 031 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. 1802 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 5.10.2010 of the court of the Judicial First Class Magistrate, Pala in S.T.No.2306 of 2009, by which the learned Magistrate, acquitted the accused under section 256(1) Cr.P.C. 2. I have heard Sri S.Prasanth, the learned counsel appearing for the appellant. 3. Counsel for the appellant submitted that the cheque in question covers an amount of Rs.90,000/-. It is the further submission of the counsel that the complaint was filed on 19.9.2009 but the accused appeared only on 28.8.2010 on which date his pleading was recorded and on the next posting date, i.e, on 5.10.2010, the impugned order was passed in spite of the fact that the complainant has filed an application for his exemption on medical ground. Therefore, according to the learned counsel, the appellant may be given an opportunity to prosecute the matter on merit. CRL.A.NO.1802/11 2 3. From the impugned order, it can be seen that the case was specifically posted for evidence with a direction to the complainant to appear before the court , but the complainant was absent though an application was filed for exemption. From the order passed by the learned Magistrate in CMP No.8108/10 in S.T.No.2306/2009 it appears that, in spite of the specific posting of the case for evidence of the complainant, and with a direction to the complainant to present on that day, the complainant remained absent and the ground for his absence is not substantiated. No record or evidence is produced to show that he was prevented from appearing before the court on medical ground. However, it can be seen that the court has already taken cognizance for the offence under section 138 of the NI Act connected with the dishonour of a cheque which covers an amount of Rs.90,000/-, but there is no decision on merit. Therefore, According to me, one more opportunity can be given to the complainant to prosecute the matter on merit but such an opportunity can be given only on terms since there is negligence on the part of the appellant in appearing before the court in terms of the direction issued by the learned Magistrate. In the result, this appeal is disposed of setting aside the order CRL.A.NO.1802/11 3 dated 5.10.2010 in S.T.No.No.2306/2009of the Court of Judicial First Class Magistrate, Pala on condition that the appellant/complainant deposits a sum of Rs.1500/-(Rs.one thousand five hundred 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 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.1500/-, a sum of Rs.1000/- (Rs.one thousand only) shall be paid to the accused on his appearance and the remaining amount of Rs.500/- shall be deposited in the State Exchequer. V.K.MOHANAN, JUDGE kvm/- CRL.A.NO.1802/11 4