IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 CRL.A.No. 1844 of 2011() ------------------------ ST.3115/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... PETITIONER/APPELLANT/COMPLAINANT -------------------------------------------------------------------------- RAPHY, AGED 43 YEARS, S/O.JOSEPH, PURANJIRA HOUSE, VELUPPADAM.P.O., VIA ALAGAPPA NAGAR, THRISSUR, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER HARIDAS, AGED 40 YEARS, S/O. AYYAPPAN, EDATHARA HOUSE, ATTORE DESOM, KUTOOR VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT(S)/ ACCUSED AND STATE ------------------------------------------------------------ 1. K.A.VINOD, AGED 39 YEARS, KIZHAKKEY PARIYARATHU HOUSE, MAAKATHRA, AKASAMI WING, AGRICULTURAL UNIVERSITY MAIN CAMPUS, VELLANIKKARA, MANNOOTHI, THRISSUR. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.LOWSY THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts V.K.MOHANAN, J. ------------------------------- Crl.A.No.1844 of 2011 ------------------------------- Dated this the 27th day of October, 2011. J U D G M E N T The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the order dated 25.7.2008 of the Judicial First Class Magistrate court-III, Thrissur, in S.T.No.3115/05, by which the learned Magistrate acquitted the accused in his complaint under Section 256(1) of Cr.P.C. 2. Learned counsel for the appellant submitted that, the cheque in question covers an amount of Rs.37,600/- and though cognizance was taken, there is no decision on merit and though the complainant was absent on 25.7.2008, he was represented and an application was filed to excuse his absence, because the Power of Attorney Holder, who represented the complainant, was out of station connected with his business purpose. Therefore, according to the learned counsel, an opportunity may be given to the 2 Crl.A.No.1844 of 2011 appellant to prosecute the matter on merit. 3. Having regard to the facts and circumstances involved in the case, especially when the cheque in question covers an amount of Rs.37,600/- and as there is no decision on merit, inspite of the fact that cognizance has already been taken, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit but such an opportunity can be granted only on terms, since the complainant was not present to adduce evidence, though the matter pertains to the year 2005. In the result, this appeal is disposed of setting aside the order dated 25.7.2008 in S.T.No.3115/05 of the court of Judicial First Class Magistrate court-III, Thrissur, on condition the appellant/complainant depositing a sum of Rs.2,000/- (Rupees two thousand only) in the trial court, within one month from today. Accordingly, the learned Magistrate is directed to restore the complaint on file on 28.11.2011, on which date the appellant/complainant is 3 Crl.A.No.1844 of 2011 directed to appear before the trial court. On satisfaction that the appellant/complainant depositing Rs.2,000/- as directed above, the learned Magistrate is directed to proceed with the complaint in accordance with procedure and law and dispose of the same on merit. On the appearance of the accused, out of Rs.2,000/- which would be deposited by the complainant, a sum of Rs.1,000/- shall be paid to the accused and the remaining sum of Rs.1,000/- shall be deposited in the State Exchequer. As the case pertains to the year 2005, the learned Magistrate is directed to expedite the trial of the case and dispose the same as expeditiously as possible. V.K.MOHANAN, Judge ami/