IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 CRL.A.No. 908 of 2007() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.82/2007 Dated 15/02/2007 CC.484/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... APPELLANT(S): COMPLAINANT ------------------------- N.U.PATHROSE, S/O ULAHANNAN, AGED 57 YEARS, RESIDING AT VETTIKKAMATTATHIL, PAZHOOR, PIRAVOM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.A.AUGUSTINE, S/O.ANTHRAYOSE, AGED 59, PALLIPARAMBIL HOUSE, NECHOOR, PIRAVOM. BY ADV. MR.ELDO KURIAKOSE RESPONDENT(S): ACCUSED/STATE ---------------------------- 1. V.S.REVI, CHEERAKKATTIL HOUSE, PAZHOOR, PIRAVOM P.O., ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR.K.T.SHYAMKUMAR FOR R1 BY PUBLIC PROSECUTOR MR.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------------- Crl.Appeal No.908 of 2007 - C --------------------------------- Dated this the 30th day of March, 2009 J U D G M E N T The complainant in a prosecution case for the offence punishable under Section 138 of the Negotiable Instruments Act, is the appellant herein, who challenges the order of the court below issued under Section 256(1) of the Code of Criminal Procedure. 2. The appellant/complainant approached the court below by filing a complaint under Section 138 of the Negotiable Instruments Act, wherein the allegation is that the cheque in question covered for an amount of Rs.3,00,000/- was dishonoured for want of sufficient funds. Court below took cognizance upon the complaint and instituted C.C.No.484/2006. The offence was committed on 20.5.2005 and the complaint is dated 22.7.2005. From the order it appears that the complainant was continuously absent and there is no representation even. As per the order it is stated that during the last posting day also the same was the position. It was in the above circumstances, the Crl.Appeal No.908 of 2007 - C 2 court below acquitted the accused under Section 256(1) of the Code of Criminal Procedure. 2. The learned counsel for the appellant submitted that the absence was not due to any negligence or laches on the part of the complainant but due to a mistake crept in noting down the next posting date. According to the counsel for the appellant, from 18.5.2006 the case was adjourned to 18.7.2006. But, it was mistakenly noted down as 18.9.2006. Thus according to the counsel there is no negligence on the part of the complainant or his counsel and since there is no decision on merit, an opportunity may be given to the complainant to prosecute the complaint. 3. Having regard to the facts and circumstances of the case, I am of the view that as there is no decision on merit, one more opportunity can be given to the complainant to prosecute the case and his right shall not be affected due to the lapse from the part of the counsel in noting down the posting date of the case. It is a matter pertaining to the year 2006. therefore, this appeal can be allowed on terms. Crl.Appeal No.908 of 2007 - C 3 In the result, this appeal is allowed, setting aside the order dated 7.8.2006 in C.C.No.484/2006 on condition that the appellant makes a payment of Rs.500/- in the court below. Thus, the parties are directed to appear before the court below on 30.4.2009 on which date the could shall take the complaint and on satisfaction of the amount paid by the complainant an amount of Rs.500/- which shall be remitted to the State exchequer, the court is further directed to proceed with the complaint and dispose of the same on merit. As the matter is pertaining to the year 2006, the court is directed to expedite the proceedings. V.K.MOHANAN, JUDGE. bkn/-