IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 CRL.A.No. 967 of 2011() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.435/2011 Dated 15/06/2011 ST.64/2010 of the Court of the Judicial 1st Class Magistrate-X, Thiruvananthapuram .................... APPELLANT(S): COMPLAINANT ------------------------- ACHENKUNJ.P.V., K-50, PILLACHIRA, KAILAS NAGAR, PATTOM.P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. CHANDRA PILLA KURIAN, HOUSE NO.55, SAMANYAM, PLACE NAGAR, PALACE ROAD, KOLLAMPUZHA, ATTINGAL-695101. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. Appeal No.967 of 2011 -------------------------------------------- Dated this the 13th day of July, 2011 JUDGMENT The appellant in a prosecution for the offences under Section 138 of the NI Act, is the accused, as he is aggrieved by the order dated 27.12.2010 of the court of Judicial First Class Magistrate Court-X, Thiruvananthapuram in ST No.64/2010 by which the learned Magistrate acquitted the accused under Section 256(1) of Cr.P.C. 2. The learned counsel for the complainant/appellant on the strength of the decision of this Court reported in Joseph PV v. State (2010 (4) KLT 697) submitted that the order of the learned Magistrate is legally unsustainable especially when the cheque covers an amount of Rs.2,50,000/-. 3. It appears that another learned Judge of this Court granted leave to file appeal by order dated 15.6.2011 in Crl. LP.No.435/2011. 4. From the facts and circumstances involved in this Crl. Appeal No.967 of 2011 2 case, it appears that ST No.64/2010 was instituted on taking cognizance for the offence u/s. 138 of NI Act, on the allegation that the accused committed the offence connected with a cheque covers an amount of Rs.2.5 lakhs. But from the order it appears that the complainant was regularly absent. However, as the court has already taken cognizance. According to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter and to have a decision on merit. But the same can be done only on terms since the complainant was regularly absent. In the result, this appeal is allowed setting aside the order dated 27.12.2010 in ST No.64/2010 of the court of Judicial First Class Magistrate-X, Thiruvananthapuram on condition the appellant/complainant depositing a sum of Rs.2,500/- in the trial court. Accordingly, the appellant/complainant is directed to appear before the trial court on 16.8.2011, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant deposit the above amount, Crl. Appeal No.967 of 2011 3 proceeded with the complaint in accordance with the procedure and law and dispose the same on merit. On deposit the above amount, a sum of Rs.1,500/- shall be paid to the accused/complainant on his appearance and the remaining amount of Rs.1,000/- shall be deposited in the State Exchequer. V.K.MOHANAN, JUDGE. pm/