IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 CRL.A.No. 761 of 2010() ----------------------- ST.2249/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... APPELLANT: COMPLAINANT ------------------------- BHARATHBOOSHAN,S/O.LATE RAMAN, CHETTIKULAMBU KALAM,CHITHALI P.O., COYALMANNAM,PALGHAT BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENT: ACCUSED ---------------------- K.RADHAKRISHNAN,S/O.SIVAN NAIR, GROUP D,KENDRIYA VIDYALAYA,HEMAMBIKA NAGAR, PALGHAT. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 761 of 2010 ---------------------------------------- Dated 31st Day of May, 2010 ORDER Challenging the order dated 7.1.2010 in S.T.Case No.2249/2008 for the offence under Section 138 of the Negotiable Instruments Act by which the accused is acquitted under section 256(1) Cr.P.C., the complainant preferred this appeal. 2. The learned counsel for the appellant submitted that the complainant was present almost on all occasions and he had filed the proof affidavit in lieu of evidence and the case was posted on the date of the impugned order for cross examination of the complainant. The learned counsel further submitted that after filing the affidavit, the case was being adjourned, for cross examination, due to want of time. It is also his case that when the case was called at the time of roll call on 7.1.2010, the complainant was present and the case was passed over for taking evidence after roll call. It is CRL.A. 761/10 -:2:- further submitted that though the complainant was present at the time of the roll call, he was represented through another counsel as authorised by his counsel but, when the case was taken subsequently, the said counsel failed to represent the complainant and it was under the above circumstances, the learned Magistrate issued such an order. 3. Going by the averments contained in the memorandum of appeal and on hearing the counsel for the appellant, it appears that the cheque in question is for an amount of Rs.80,000/- and the main part of the trial, that process of adducing of evidence was started by accepting the affidavit of the complainant and the complainant was present on the date of the impugned order but he was not cross examined. In the above circumstances, I am of the view that it was only proper for the learned Magistrate to adjourn the case instead of passing an order under section 256 (1) Cr.P.C. According to the complainant, at the time of the second call of the CRL.A. 761/10 -:3:- case, there was no representation. However, considering the fact that the cheque in question covers an amount of Rs.80,000/- and the evidence have already been started, the learned Magistrate ought to have granted one more opportunity to the complainant to prosecute the matter on merit. Thus, I am of the view that this appeal can be disposed of setting aside the impugned order but subject to terms. In the result, this appeal is disposed of setting aside the order dated 7.1.2010 in S.T.Case No.2249/2008 of the court of Judicial First Class Magistrate-I, Palakkad on condition that the complainant shall deposit a sum of Rs.1500/- in the court below. Accordingly, the appellant/complainant is directed to appear before the trial court on 30.6.2010 on which date the learned Magistrate is directed to restore the complaint on file on his satisfaction that the appellant/complainant deposits a sum of Rs.1500/-, and to proceed with the complaint in accordance with the procedure and law and to dispose of CRL.A. 761/10 -:4:- the same on merit. On deposit of the amount as directed above, Rs.1000/- shall be paid to the accused on his appearance and the remaining amount shall be deposited into the State Exchequer. This Appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.A. 761/10 -:5:- O.P.No. JUDGMENT Dated:..