IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 CRL.A.No. 1786 of 2006() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.392/2006 Dated 04/08/2006 ST.2677/2003 of JUDL.MAGISTRATE OF FIRST CLASS, NORTH PARAVUR .................... APPELLANT(S): COMPLAINANT ------------------------- EZHAVODAYAM SABHA, PATTANAM, REP. BY ITS PRESENT SECRETARY, V.K.SATHEESAN, S/O.VALIYAPARAMBIL KUMARAN, PATTANAM KARA, VADAKKEKARA VILLAGE. BY ADV. SRI.V.M.KRISHNAKUMAR SRI.S.SARAVANA BHAVAN RESPONDENT(S): ACCUSED ---------------------- 1. MICHEL GEORGE, S/O.KANAKKASSERY GEORGE, KUNJITHAI KARA, VADAKKEKARA VILLAGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.SHAJU PURUSHOTHAMAN FOR R1 SRI.K.S.RAJESH FOR R1 R2 BY PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. Appeal No. 1786 OF 2006 ------------------------------- Dated this the22nd September, 2008. JUDGMENT This is an appeal filed by the complainant challenging the order of acquittal passed by the court below under Section 256(1) Cr.P.C. 2. Complaining dishonour of a cheque for an amount of Rs.75,000/- and to prosecute the respondent-accused, the complainant preferred a complaint which received on file and took cognizance under Section 138 of the Negotiable Instruments Act and instituted as S.T.2677/03 in the court of Judicial First Class Magistrate Court, N. Paravur. Though cognizance was taken on 21.6.2003 the case was indefinitely adjourned due to the non sitting of the courts on various occasions, from 5.12.2004 to 25.3.2006. From the certified copy of the order sheet produced by the counsel for the appellant it appears that a proof affidavit was filed on 1.3.2005 for and on behalf of the complainant and the case was adjourned to 20.2.2006 for evidence. Though the case was posted on two dates on 20.2.2006 and 25.3.2006 there were no sitting and Crl. Appeal No: 1786/06 2 the case was again posted on 20.4.2006. On that day also the complainant as well as the accused were absent and the applications were allowed and the matter was adjourned to 16.5.2006 for evidence. On 16.5.2006 also the complainant as well as the accused were absent. It is noted in the order sheet that the application filed on behalf of the accused was allowed and no application was filed on behalf of the complainant. It is on the above ground the court below passed an order under Section 256(1) Cr.P.C and acquitted the accused. It is the above order of acquittal challenged in this appeal. 3. I have heard counsel for the appellant as well as the contesting first respondent. 4. It appears that the amount involved connected with the cheque in question is Rs.75,000/- and that cognizance was taken on 25.6.2003, the matter was being adjourned from time to time for the reason that the court was not regularly sitting. On 16.5.2006 though the complainant was not present no application was filed on his behalf to exempt him from personal appearance before the court below. On a perusal of the order sheet it can be seen that complainant is not so negligent in prosecuting the complaint but Crl. Appeal No: 1786/06 3 there is a lapse on his part in filing a proper application to excuse his absence. But the fact remaining is that there is no decision on merit. Therefore, I am of the view that one more opportunity can be given to the complainant to prosecute the complaint effectively but subject to conditions of paying cost to the accused. In the result the appeal is allowed on condition that the appellant-complainant pay a sum of Rs.1,000/- (Rupees one thousand only) to the respondent-accused and on paying such cost the court below is directed to take up the complaint on file and to dispose the same on merits. The parties are directed to appear before the court below on 31.10.2008 and if the appellant- complainant pay the amount as directed, the court below is directed to proceed with the complaint and to dispose the same on merits. V.K.MOHNANAN JUDGE jj