IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 CRL.A.No. 1944 of 2011 (LEAVE GRANTED AS PER ORDER IN CRLP.985/2011 Dated 04/11/2011 AGAINST THE ORDER IN CC.2127/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA) .................... APPELLANT(S): COMPLAINANT --------------------------------------------- M.JAYAKUMAR, S/O.KRISHNANKUTTY MENON, PUTHOOR HOUSE, KIZHUTHANY, DIRECTOR, M/S.THAIKAT MOOS OUSHADASHALA, VALAVANAD. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENTS(S): ACCUSED ----------------------------------------- 1. SINDHU, AMMA ASSOCIATES, NEAR G.G.HOSPITALS, MURINJAPALAM, MEDICAL COLLEGE P.O THIRUVANANTHAPURAM - 695 011. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PRSOECUTOR SMT.A.LOWSY. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1944 of 2011 ---------------------------------------- Dated this the 17th day of November, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 26.8.2011 of the court of the Judicial First Class Magistrate, Irinjalakuda in C.C.No.2127 of 2009 by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. The counsel for the appellant submitted that the complainant has already filed a proof affidavit. It is also submitted that there is no wilful laches or negligence on the part of the complainant in appearing before the court below, but he was suffering from back pain on the date of the impugned order and hence, the counsel appeared before the court. Learned counsel, on the strength of the decision reported in Joseph v. State of Kerala [2010(4) KLT 697] submitted that the court has not followed the guideline issued CRL.A.NO.1944 of 2011 :-2-: therein. 3. From the submission of the learned counsel and from the appeal memorandum, it appears that the cheque in question covers an amount of Rs.19,922/- and though the court has taken cognizance, there is no decision on merit. At the very same time, it appears from the impugned order that when the case was posted for the evidence of the complainant, neither the complainant nor his counsel is present on the date of the impugned order. As the case stands posted for the evidence of the complainant, the absence of the complainant and the reason for the same should have been brought to the notice of the court either by filing a petition or through the representation of his counsel. But, there is no material to show that any such course is adopted. However, considering the facts stated earlier, I am of the view that one more opportunity can be given to the complainant to prosecute the matter on merit, but subjected to only on terms. In the result, this Criminal Appeal is disposed of setting aside the order dated 26.8.2011 in C.C.No.2127 of 2009 of the court of CRL.A.NO.1944 of 2011 :-3-: Judicial Magistrate of First Class, Irinjalakuda on condition that the appellant/complainant deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court either in person or through his counsel on 17th December,2011 on which date the learned Magistrate is directed to restore the complaint on file and on satisfaction of the learned Magistrate that the complainant has deposited the above amount, he is further directed to proceed with the trial in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused, a sum of `.1000/- shall be paid to the accused and the remaining amount of `.500/- shall be deposited in the State Exchequer. The Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge. MBS/ CRL.A.NO.1944 of 2011 :-4-: Judge MBS/ V.K.MOHANAN, J. CRL.A.NO.1944 of 2011 :-5-: CRL.A.No. 796 OF 2003 JUDGMENT Dated:4.10.2011 CRL.A.NO.1944 of 2011 :-6-: