IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH NOVEMBER, 2011 / 19TH KARTHIKA 1933 CRL.A.No. 928 of 2011 ------------------------------ LEAVE GRANTED AS PER ORDER IN CRLP.426/2011 Dated 08/06/2011 (AGAINST THE ORDER IN STC NO.67 OF 2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEDUMANGADU) .................... APPELLANT(S): -------------------- G.KUMARA PILLAI, S/O GOVINDA PILLAI KUNNILPUTHEN VEEDU, VADAKKUMKARA, NEDUMANGAD, NEDUMANGAD PO. BY ADV. SRI.R.V.SREEJITH RESPONDENTS(S): ------------------------- 1. SASIKUMAR, S/O.NEELKANDAN NAIR VIJAYA VILAS, EANIKKARA, KARAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.A.LOWSY. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 928 of 2011 ---------------------------------------- Dated this the 10th day of November, 2011 J U D G M E N T The complainant in a prosecution for the offence punishable 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 trial court under Section 256(1) of the Code of Criminal Procedure. 2. The counsel for the appellant submitted that the complainant was present regularly even though in one or two occasions, he was absent. It is the further submission of the learned counsel that the cheque in question covers an amount of Rs.4,50,000/- and the complainant has adduced evidence by filing an affidavit as PW1 and Exts.P1 to P5 were marked. It is also the submission of the learned counsel that the defence was not ready to cross-examine the complainant and the case is adjourned for further evidence. 3. On the basis of Annexure-II, learned counsel further CRL.A.NO.928 of 2011 :-2-: submitted that previous to the impugned order, in two occasions, the complainant was present and finally on 16.4.2011, the complainant could not appear before the court and filed application to excuse his absence which was rejected by the learned Magistrate and learned counsel for the appellant submitted that one more opportunity may be given to the complainant. From the materials available on record and the submission of the learned counsel, it appears that the cheque in question covers an amount of `.4.5 lakhs and though the court has already taken cognizance and process of recording the evidence started, there is no decision on merit. From Annexure-II the impugned order, it can be seen that the case was finally decided on 16.4.2011 for the evidence of the complainant and that posting was as a last chance, as evident from the proceedings of the court dated 28.2.2011. In spite of that order, the complainant did not turn up for making himself available for the cross-examination. Thus, it can be seen that there are laches on the part of the appellant for duly complying with the direction issued by the court below. Therefore, CRL.A.NO.928 of 2011 :-3-: according to me, fresh chance can can be given to the complainant, but only on terms. In the result, this appeal is disposed of setting aside the order dated 16.4.2011 in S.T.C.No.67/2010 of the court of Judicial First Class Magistrate-III, Nedumangad on condition that the appellant/complainant deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only) in the trial court within one month from today. Accordingly, the learned Magistrate is directed to restore the case on file on 12th December,2011 on which date the complainant is directed to appear before the court below. The learned Magistrate, on his satisfaction that the appellant deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only), is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused, Out of the sum of `.1500/-, `.750/- (Rupees Seven Hundred and Fifty only) shall be given to the accused as cost on his appearance and the remaining `.750/- (Rupees Seven Hundred and Fifty only) shall be CRL.A.NO.928 of 2011 :-4-: deposited in the State Exchequer. This Criminal Appeal is allowed as above. V.K.MOHANAN, Judge MBS/ CRL.A.NO.928 of 2011 :-5-: V.K.MOHANAN, J. CRL.A.No. 796 OF 2003 JUDGMENT Dated:4.10.2011 CRL.A.NO.928 of 2011 :-6-: