IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 CRL.A.No. 2143 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.969/2010 Dated 27/09/2010 ST.63/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, THIRUVANANTHAPURAM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ ELIZABETH JOHN,PROPRIETOR,AL-SHADDAI, CORPORATION,TC-31/1557(3),GROUND FLOOR, KESAVADASAPURAM.P.O,PATTOM.P.O,THIRUVANANTHAPURAM- 695004,REPRESENTED BY POWER OF ATTORNEY HOLDER, MOHANDAS JONES. BY ADV. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. RENJITH.S,PROPRIETOR,UNNIKKANNAN AGENCIES,PUTHENCHANTHA,VARKALA.P.O, THIRUVANANTHAPURAM. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. Appeal No.2143 of 2010 -------------------------------------------- Dated this the 16th day of August, 2011 JUDGMENT The complaint in a prosecution for the offence punishable u/s. 138 of the NI Act is the appellant, as she is aggrieved by the order dated 9.10.2009 of the court of Judicial First Class Magistrate-VII, Thiruvananthapuram in ST No.63/2009 by which the learned Magistrate acquitted the accused u/s.256(1) of Cr.P.C. 2. Heard the counsel appearing for the appellant. Though notice was served on respondents, nobody has turned up and no objection is raised against allowing the above appeal. 3. Counsel for the appellant submitted that originally, a private complaint was filed in the Judicial First Class Magistrate Court-II, Thiruvananthapuram, wherein cognizance was taken upon the complaint i.e, C.M.P.No.404/2009 and ST No.322/2009 was instituted and thereafter the case was transferred to the present trial court wherein the case is re-numbered as ST No.63/2009. It is also the submission of the learned counsel that so far the accused has not appeared instead of the fact that the Crl. Appeal No.2143 of 2010 2 summons was sent to the accused and the impugned order was passed when the warrant against the accused was pending. It can be seen that while passing the impugned order the accused has not appeared or produced. It is also relevant to note that the cheque in question covers an amount of Rs.50,000/-. It is also pertinent to note that, though the accused was absent as discernible from the order on 23.5.2009, 27.9.2009 and 16.9.2009 the complainant was also absent. Under the above circumstances, according to me, it cannot be said that the order of the learned Magistrate is wrong or illegal. However, considering the fact that the cheque in question covers an amount of Rs.50,000/- and the accused has not appeared, I am of the view that one more opportunity can be given to the complainant to prosecute the matter on merit, but on terms because of the negligence in appearing before the court in time. In the result, this appeal is disposed of setting aside the order dated 9.10.2009 in ST No. 63/2009 of the court of Judicial First Class Magistrate Court-VII, Thiruvananthapuram on condition the appellant deposits a sum of Rs.1500/-. Accordingly, the appellant is directed to appear before the trial court on 19.9.2011, on which date the learned Magistrate is Crl. Appeal No.2143 of 2010 3 directed to restore the complaint on file and on his satisfaction that the complainant deposits the amount as directed above, proceed with the case in accordance with the procedure and law and dispose the same on merit. Out of Rs.1500/-, on appearance of the accused a sum of Rs.750/- shall be given to the accused and the remaining shall be deposited in the State Exchequer. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE. pm/