IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 CRL.A.No. 1526 of 2011() ------------------------------------ AGAINST THE ORDER DATED 22/08/2011 IN ST.NO.2034/2005 OF THE JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... APPELLANT(S): PEPTITIONER/COMPLAINANT ------------------------------------------------------------------- M/S. PALGHAT PREMIER CHITS INDIA (P) LTD REGISTERED OFFICE: A1, AIN BUILDING, COLLEGE ROAD, PALAKKAD REPRESENTED BY ITS DEPUTY CHAIRMAN K.P.RAMASUBRAMANIAN. BY ADV. SRI.T.M.RAMAN KARTHA RESPONDENT(S): ACCUSED & STATE ------------------------------------------------------- 1. K.RAMESH, AGED 27, WORK SHOP, S/O. KRISHNAN, KOTTEKKAD, KALIPPARA,PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ERNAKULAM. R1 BY ADV. SRI.NIREESH MATHEW R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011, ALONG WITH CRA NO.1527 OF 2011 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts V.K.MOHANAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Crl.A. Nos. 1526/ 2011 , 1527/2011, 1528/2011,1529/2011, 1530/2011, 1531/2011, 1532/2011 & 1533/2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of August, 2011 COMMON JUDGMENT As these appeals are preferred by the same appellant and the facts and circumstances involved in these cases are identical and all the impugned orders are passed by the same trial Court, these appeals are being heard and disposed together by this common judgment. 2. The appellant herein who is the complainant initially approached this Court by filing separate leave petitions seeking special leave of this Court to prefer the present appeals. As there was delay in filing the leave petition by separate order dated 17.6.2010, in all the above leave petitions the delay was condoned imposing a cost of Rs.500/-(rupees five hundred) payable to the accused/respondent in each cases. Accordingly, the cost was paid and thus when the above leave petitions came up for consideration this Court has granted leave and thus these appeals come up for Crl.A.No1526 of 2011 and connected cases. : 2 : admission. 3. The challenge in these appeals are against the orders passed by the learned Magistrate of the Judicial First Class Magistrate Court II, Palakkad, under Section 256(1) of Cr.P.C. by which the accused persons in the prosecution for the offence under Section 138 of N.I. Act are acquitted. The appellant/complainant is a company registered under the Indian Companies Act and the company conducting kuri business and the accused in each case are the subscribers of the chitty and according to the complainant the accused in each case issued the cheque in question towards the discharge of the liability that arose out of the chitty transaction between the complainant/appellant and the accused. The amount covered by the cheque in question in each case are though different but are substantial amount. It is pertinent to note that in each case the trial court has already taken cognizance and instituted the cases as summary trial. 4. Counsel for the complainant/appellants submitted that the complainant company is having a sister concern by name S.J. Crl.A.No1526 of 2011 and connected cases. : 3 : Home in Palakkad and as the appellant company was facing financial trouble on account of non refunding of chitty amount by bidders, the turnover of the said concern namely S.J. Homes has also to be diverted to the complainant/company for satisfying its creditors and subsequently the said sister concern faced financial crisis and finally it was wound up on 2.2.2006. Thus according to the complainant/appellants, the power of attorney holder who was managing the affairs of the sister concern had to keep away from Palakkad to raise funds to satisfy the creditors and it was under the above background the power of attorney holder failed to appear before the Court below in these cases and subsequently the learned Magistrate has issued the orders under Section 256(1) Cr.P.C. 5. In the light of the above facts and circumstances especially when there is no decision on merit, even though cognizance was taken by the Court below on each of the complainant, I am of the view that it is only just and proper to grant one more opportunity to the complainant/appellant in each case to prosecute the matter on merit. However, it can be seen that the Crl.A.No1526 of 2011 and connected cases. : 4 : Court was constrained to issue such an order in the nature impugned in these appeals because of the absence of the complaint and the complainant could have taken appropriate steps for the effective prosecution of the complainant and to represent the complainant in the Court in appropriate time. But that was not done. Therefore, when granting one more opportunity to the complainant to prosecute the matter, especially when the accused has already been acquitted, the same can be allowed only on terms. In the result, these appeals are disposed of setting aside the orders impugned in these appeals on condition, in each case the appellant depositing a sum of Rs.1500/- in the trial court within one month from today. Accordingly, the learned Magistrate is directed to restore the complaint in S.T. Nos. 2034/2005, 4602/2005, 2036/2005, 3180/2005, 3258/2005, 2270/2005, 2276/2005 and 2089/2005 on 29.9.2011 on which date the complainant is directed to appear before the trial court either in person or through the counsel. On satisfaction of the learned Magistrate that the complainant has deposited an amount of Rs.1500/-(rupees one Crl.A.No1526 of 2011 and connected cases. : 5 : thousand five hundred only) in each case and if he appears, as directed above proceed with the trial in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused in each case a sum of Rs.500/-(rupees five hundred), out of the amount which will be deposited by the appellant, shall be given to the accused and the remaining amount of Rs. 1000/- (rupees one thousand) in each case shall be deposited in the State exchequer. Since the cases are pertained to the year 2005, the parties to the proceedings are directed to cooperate with the trial of the case and the learned Magistrate is directed to expedite the disposal of the matter. sd/- (V.K. MOHANAN, JUDGE) kp //True copy//