IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 CRL.A.No. 1994 of 2011 ------------------------------- (LEAVE GRANTED AS PER ORDER DATED 28.10.2011 IN CRLP.967/2011) (AGAINST THE ORDER IN C.C..NO.1184/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS - III, ALUVA) .................... APPELLANT(S): COMPLAINANT --------------------- PAPPACHAN VARGHESE, MANAGER PERIYAR GROUP PUBLICATIONS, P.B.NO.153, ALUVA-1. BY ADV. SRI.P.V.ELIAS RESPONDENTS(S): ACCUSED AND STATE --------------------------- 1. SANTHOSHKUMAR.S., 'SIVA NIVAS', U.C.COLLEGE.P.O., EAST KADUNGALLOOR, ALUVA 684906 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.LOWSY. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1994 of 2011 ---------------------------------------- Dated this the 24th 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 since he is aggrieved by the judgment dated 14.7.2008 in C.C.No.1184 of 2006 of the court of Judicial First Class Magistrate-III, Aluva by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. Heard the counsel for the appellant. I have perused the judgment of the trial court impugned in this appeal. 3. Counsel for the appellant submitted that the cheque in question covers an amount of `.20,500/- and according to the learned counsel, though the court has taken cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act, there is no decision on merit. It is the further submission of the learned counsel that originally, a complaint was filed in the Judicial CRL.A.NO.1994 of 2011 :-2-: First Class Magistrate Court-I, but subsequently the same was made over to the Judicial First Class Magistrate Court -III and the clerk attached to the counsel for the complainant in the trial court failed to take note of the factum of transfer of the case from the Judicial First Class Magistrate Court-I to Judicial First Class Magistrate Court-III, Aluva and consequently, when the case was called on the date of the impugned order, there was no representation and as a result of which, the learned Magistrate issued the impugned order. Therefore, the learned counsel submitted that an opportunity may be given to the complainant to prosecute the matter on merit. 4. In the light of the submission made by counsel for the appellant and from the appeal memorandum, it appears that the cheque in question covers an amount of `.20,500/- and it is further clear that the court has taken cognizance upon the complaint preferred by the appellant, and there is no decision on merit. But the reason stated in the appeal memorandum and submitted by the learned counsel for the non-representation of the complainant on the date of the impugned CRL.A.NO.1994 of 2011 :-3-: order is not acceptable since it was incumbent on the complainant and his counsel to follow the procedure of the court and to make available themselves in the court when the case was taken for consideration. It is also relevant to note that when the leave petition was filed prior to the filing of the present appeal, there was delay and the said delay petition as well as the leave petition were allowed without hearing the accused. Considering the entire facts, I am of the view that the appellant can be granted one more opportunity to prosecute the matter on merit and to have a decision thereon, but such an opportunity can be given only on terms as there were laches from the part of the appellant in prosecuting the matter effectively and properly both in the trial court as well as in this Court and considering the interest of the accused as well as the State. In the result, this appeal is disposed of setting aside the order dated 14.7.2008 in C.C.No.1184 of 2006 of the court of Judicial First Class Magistrate-III, Aluva on condition that the appellant/complainant deposits a sum of `.2500/- (Rupees Two CRL.A.NO.1994 of 2011 :-4-: Thousand Five Hundred only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 23.12.2011 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposited a sum of `. 2500/- as directed above and appeared before the court below, the learned Magistrate is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused, a sum of `.1500/-, out of the above amount, shall be paid to the accused and the remaining amount of `.1000/- shall be deposited in the State Exchequer. It is made clear that in case of any failure on the part of the appellant either in appearing before the court below on the date fixed above in person or through his pleader or in depositing the above amount within the time stipulated, this order will stand vacated and consequently, the appeal will stand dismissed. CRL.A.NO.1994 of 2011 :-5-: The Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1994 of 2011 :-6-: