IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 CRL.A.No. 2123 of 2011 ------------------------------- (AGAINST THE JUDGMENT DTD.16.9.2011 IN CC.278/2009 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM) .................... APPELLANT(S): PETITIONER/COMPLAINANT ---------------------------------------------------------------- HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED,HDFC HOUSE,RAVIPURAM JUNCTION, M.G.ROAD,KOCHI-682015. BY ADV. SRI.REJI GEORGE SMT.MANJU RAJAN SRI.GOPAKUMAR G. (ALUVA) SMT.JAISY MATHEW RESPONDENTS(S): ACCUSED AND STATE ----------------------------------------------------------- 1. VIJAYARAGHAVAN.M,PILLARUKANDIYIL HOUSE, KARANTHUR.P.O,KUNNAMANGALAM,KOZHIKODE, PIN-673571. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031. R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 2123 of 2011 ---------------------------------------- Dated this the 16th day of December, 2011 J U D G M E N T The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as it is aggrieved by the order of acquittal recorded by the trial court under Section 255(1) of the Code of Criminal Procedure. 2. Learned counsel for the appellant submitted that the appellant, who is the complainant before the court below, was prosecuting the matter effectively and simply for the reason that the counsel for the appellant/complainant could not appear before the court below in time, the learned Magistrate issued the impugned order. It is the further submission of the learned counsel that the cheque in question covers an amount of `.3,06,066/-, the amount which is due to the complainant, connected with the loan amount availed of by the accused from the complainant/bank. It is also Crl.A.No.2123 of 2011 :-2-: pointed out by the learned counsel that though the impugned judgment was passed under Section 255(1) of the Cr.P.C., there is no decision on merit since the complainant could not adduce its evidence, but the learned Magistrate of the trial court still then issued the order under Section 255(1) of the Cr.P.C. though the immediate reason for the order was the absence of the complainant. Learned counsel has pointed out that on the date of the impugned order, the complainant was not present and the counsel for the complainant could not reach the court in time. But, the learned Magistrate issued the impugned order under Section 255(1) of the Cr.P.C. According to the learned counsel, the complainant was ready with the proof affidavit, but the same could not be produced before the court as the counsel could not appear before the court in time as he was engaged in another court. Therefore, the learned counsel submitted that one more opportunity may be given to the complainant, which is a public undertaking. 3. I have considered the submission of the learned counsel. From the impugned order, it can be seen that the cheque in question Crl.A.No.2123 of 2011 :-3-: covers an amount of `.3,06,066/- and though cognizance was taken upon the complaint preferred by the appellant/complainant, based upon the dishonoured cheque dated 5.11.2007 which covers an amount of `.3,06,066/-, there is no decision on merit. From the facts stated by the appellant, it appears that originally, the complaint was filed in the Judicial First Class Magistrate Court-I, Kodungallur from where the same was returned for representation before the proper court and thus, the complaint was represented in the present trial court on 19.9.2009 and the cognizance was taken thereafter and process was issued to the accused on 30.09.2009, notifying the date as 17.2.2010 for his appearance. But, there was no sitting on that day. Consequently, the case was adjourned to 8.3.2010 on which date the accused had entered appearance and thereafter, the case was adjourned to 15.9.2010. From the submission of the learned counsel for the appellant, it appears that subsequently, the accused had preferred a petition i.e., Crl.M.P.No.1962 of 2011 on 2.6.2011 for the dismissal of the complaint and the trial court had passed an order on 19.7.2011 Crl.A.No.2123 of 2011 :-4-: dismissing the above petition, moved by the accused and thus, the case was adjourned to 2.9.2011 for evidence. As there was no representation on that day, the court suo motu adjourned the case to 16.9.2011. Though the counsel for the appellant submitted that the complainant and the counsel for the complainant were ready with the proof affidavit to be filed before the court, there is no material to substantiate the above claim. The fact that can be inferred from the order impugned is that the complainant was not present in the court. The impugned order says nothing about the presence or the absence of counsel for the complainant. From the facts referred to above, I am of the view that the complainant was prosecuting the matter earnestly and effectively. After the disposal of the petition filed by the accused, there were only two posting dates and on the second posting date, the learned Magistrate has issued the impugned order. 4. The complainant is a public limited company wherein the cheque in question covers an amount of `.3,06,066/- and there is no decision on merit, even though the cognizance was taken. Having Crl.A.No.2123 of 2011 :-5-: regard to the above facts and circumstances, according to me, it is only just and proper to remand the matter to the trial court for further consideration of the matter. As per the impugned order, as the accused has got an order of acquittal, according to me, the interest of the accused can also be saved by making appropriate directions in this order and the complainant can be given one more opportunity to prosecute the matter. In the result, this Criminal Appeal is disposed of setting aside the judgment dated 16.09.2011 in C.C.No.278 of 2009 of the court of Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and the matter is remanded back for fresh consideration of the trial court, from the stage at which the impugned order was passed, after giving an opportunity to both the complainant as well as the accused to advance their pleadings and to adduce evidence, on condition that the appellant deposits a sum of `.2000/- (Rupees Two Thousand only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before Crl.A.No.2123 of 2011 :-6-: the trial court on 16.1.2012, on which date the learned Magistrate is directed to take up the case on file and on his satisfaction that the appellant/complainant deposits `.2000/- as directed above, proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. On the appearance of the accused, a sum of `.1500/- shall be paid to the accused out of the amount which should be deposited by the appellant and the remaining amount of `.500/- shall be deposited in the State Exchequer. This Criminal Appeal is disposed of as above. V.K.MOHANAN, JUDGE. MBS/ Crl.A.No.2123 of 2011 :-7-: V.K.MOHANAN, Judge MBS/ V.K.MOHANAN, J. Crl.A.No.2123 of 2011 :-8-: CRL.A.No. 434 OF 2003 JUDGMENT Dated:11.11.2011 Crl.A.No.2123 of 2011 :-9-: