IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 CRL.A.No. 677 of 2010() ---------------------------------- CC.169/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II (ADDL. MUNSIFF), KASARAGOD. .................... APPELLANT/COMPLAINANT ----------------------------------------- K. SHOUKATH ALI, S/O.UKKAS AMU HAJI, STAR NAGAR, BEVINJE, KASARAGOD TALUK. BY ADV. MR.K.P.HARISH RESPONDENTS/ACCUSED AND STATE ---------------------------------------------------------- 1. ABID THANGAL @ A.M. ABID, S/O.SAYYED ABOOBACKER THANGAL, MOOLA HOUSE, POST ADHUR, (VIA) MULLERIA, KASARAGOD TALUK. 2. STATE-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.C.S. HRITHIK. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. V.K.MOHANAN,J. ------------------------------ Crl.Appeal No. 677 OF 2010 ----------------------------------------------------- Dated this the 7th day of April, 2010 JUDGMENT This is an appeal at the instance of the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, as he is aggrieved by the order of acquittal recorded by the trial court under Section 256(1) of Crl.P.C. 2. The learned counsel for the appellant submitted that though summons was issued against the accused, he did not appear in time and the matter was prolonged due to the non-co-operation of the accused with the procedure of the court and finally the court issued arrest warrant and only recently the accused entered appearance before the court through his counsel by filing a petition 205 of Cr.P.C. It is also submitted by the learned counsel that thereafter at the instance of the accused the case was sent to Adalath for settlement, but the accused did not appear in the Adalath and hence the case was again sent back to the court. Thus Crl.Appeal No. 677 OF 2010 2 according to the learned counsel the appellant was prosecuting the matter vigilantly and hence, an opportunity may be given to the appellant/complainant to prosecute the case before the court below. 3. Going by the order impugned, I find no illegality with the reason stated by the trial court, especially in the absence of any proper and convincing explanation for the consecutive absence of the complainant in spite of the direction issued by the court for his presence and for giving evidence. 4. However, it appears that the cheque in question covers an amount of Rs.1,50,000/- and the case pertain to the year 2009 and there is no decision on merit. It is also discernible from, the order that though the complainant was not present, a petition to excuse his absence was filed, but the same was dismissed without stating any reason for rejecting the said petition. The impugned order also does not contain any details regarding the previous posting dates and the steps taken during that period. Under the above circumstances, I am of the view that an opportunity can be given to the complainant/appellant to prosecute the Crl.Appeal No. 677 OF 2010 3 case but subject to terms. In the result, this appeal is disposed of setting aside the order dated 15.10.2009 in C.C.No.169/2009 of the Court of Judicial First Class Magistrate II(Additional Munsiff), Kasaragod on condition the appellant/complainant deposits a sum of Rs.2,500/- in the court below. Accordingly, the appellant/complainant is directed to appear before the trial court on 10.5.2010 on which date the court below is directed to restore the compliant to file on its satisfaction that the appellant/complainant deposits a sum of Rs.2,500/- and to proceed further with the complaint in accordance with law and procedure and dispose the same on merit. On making deposit Rs.2,500/- as stipulated above, the court below is directed to deposit a sum of Rs.2,000/- into the state exchequer and remaining Rs.500/- shall be paid to the accused. Crl.Appeal is disposed of accordingly. V.K.MOHANAN,JUDGE. mns Crl.Appeal No. 677 OF 2010 4