IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 CRL.A.No. 1161 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.356/2011 Dated 24/05/2011 ST.44/2010 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- ANIL KUMAR G., ANIL NIVAS, TRA-II A, MUNDAKKAL, KOLLAM. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT(S): ACCUSED & STATE: --------------------------------------------------------- 1. VINOD G., PATTATHUVILA VEEDU, KADAPPAKKADA P.O., KOLLAM - 695 051. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.WILSON URMESE R2 BY PUBLIC PROSECUTOR SMT. LALIZA T.Y. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl.A.No.1161 of 2011 ------------------------------- Dated this the 12th day of December, 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 9.2.2011 in S.T.No.44 of 2010, of the court of Judicial First Class Magistrate-III, Kollam, by which the learned Magistrate acquitted the accused, in his complaint, under Section 256 (1) of Cr.P.C. 2. The counsel for the appellant submitted that the cheque in question covers an amount of Rs.1,84,000/-. According to the counsel, the complainant was present on 20.1.2011 but there was no sitting on that day and the case was adjourned to 9.2.2011 but the clerk attached to the office of the counsel for the complainant in the trial court wrongly noted down the case date as 19.2.2011 instead of 9.2.2011 and it was in that background, neither the 2 Crl.A.No.1161 of 2011 complainant nor his counsel present in the court when the case was called on 9.2.2011. Therefore, the counsel submitted that an opportunity may be given to the complainant to prosecute the matter on merit. Counsel for the respondent submitted that the explanation offered by the appellant is not convincing and acceptable and there is no material to substantiate the above contention. 3. In the light of the submissions made by the counsels and from the impugned order it appears that the court has already taken cognizance for the offence punishable under Section 138 of Negotiable Instruments Act, based upon the complaint preferred by the appellant connected with the dishonour of the cheque which covers an amount of Rs.1,84,000/-. But it is beyond dispute that though cognizance was taken, there is no decision on merit. Having regard to the facts and circumstances involved in the case, according to me, eventhough there is laches on the part of the complainant to prosecute the 3 Crl.A.No.1161 of 2011 matter earnestly, one more opportunity can be given in favour of the appellant to have a decision on merit. According to me, such an opportunity can be given only on terms. In the result, this appeal is allowed setting aside the order dated 9.2.2011 in S.T.No.44 of 2010, of the court of Judicial First Class Magistrate-III, Kollam,, on condition that the appellant depositing a sum of Rs.1,750/- (Rupees one thousand seven hundred and fifty only) within one month from today in the trial court. Accordingly, the appellant is directed to appear before the trial court on 12.1.2012, on which date the learned Magistrate is directed to restore the complaint on file and on the satisfaction of the learned Magistrate that the appellant/complainant deposit the amount as directed above, proceed with the case in accordance with the procedure and law and dispose it on merit. The accused is also directed to appear before the trial court either in 4 Crl.A.No.1161 of 2011 person or through his counsel. On the appearance of the accused, a sum of Rs.1,000/- (Rupees one thousand only) shall be paid to the him, out of the amount which would be deposited by the appellant and the remaining amount of Rs.750/- shall be deposited in the State Exchequer. V.K.MOHANAN, Judge ami/