IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 CRL.A.No. 2281 of 2009() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.944/2009 Dated 29/10/2009 ST.308/2009 of JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ T.V.KARTHIKEYAN, S/O.VASU, THEKKEPPARAMBIL HOUSE, THRIKKODITHANAM.P.O, CHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. T.V.MRUTHYUNJAYAN, S/O.VASU, THEKKEPPARAMBIL HOUSE, THRIKKODITHANAM.P.O, CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------- Crl.A.No. 2281 of 2009 ------------------------------------ Dated this the 26th day of September, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the learned Magistrate under Section 256(1) of Cr.P.C. acquitting the accused, vide his order dated 21.8.2009 in S.T.No.308/2009 of the Judicial First Class Magistrate Court-II, Changanacherry. 2. Counsel for the appellant submitted that originally the complaint was filed in the Judicial First Class Magistrate Court-I, Changanacherry and subsequently, the case is made over to the present trial court. According to the learned counsel, the posting date of the case in the transferee court is not properly noted down, consequently, neither the complainant nor his counsel could appear. I am not satisfied with the above explanation. Counsel for the appellant has no case that the transfer of case from the court of Judicial First Class Magistrate-I to Judicial First Class Magistrate Court-II is not notified. If that be so, it was incumbent upon the Crl.A.No. 2281 of 2009 2 complainant as well as his counsel to be present in the transferee court when the case was called. Therefore, it appears that there is negligence on the part of the complainant. However, the cheque in question covers an amount of Rs.50,000/- and though cognizance was taken upon the complainant preferred by the appellant, there is no decision on merit. If that be so, according to me, it is only just and proper to give an opportunity to the complainant to prosecute the matter on merit, but the same can be allowed only on terms. In the result, this appeal is disposed of setting aside the order dated 21.8.2009 in S.T.No.308 of 2009 of the court of the Judicial First Class Magistrate-II, Changanacherry on condition that the appellant/petitioner deposits a sum of Rs.2000/- (Rupees Two Thousand only) in the trial court. Accordingly, the learned Magistrate is directed to restore the complaint on file on 27th October, 2011 on which date the complainant is directed to appear before the trial court and on satisfaction of the learned Magistrate that the appellant/complainant deposits the amount as ordered above, he is further directed to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. On deposit of Rs.2000/- by the Crl.A.No. 2281 of 2009 3 complainant as directed above, a sum of Rs.1000/- shall be paid to the accused on his appearance and the remaining amount of Rs.1000/- shall be deposited in the State Exchequer. This Criminal Appeal is disposed of with the above direction. V.K.MOHANAN, Judge pm/