IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 CRL.A.No. 540 of 2010 (AGAINST THE ORDER IN CRLP.211/2010 ST.2668/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM) .................... APPELLANT(S): -------------- JAFER SADIK, AGED 30 YEARS S/O.C.M.MUSTHAFA, CHATHAMKULAM VEEDU NEAR K.V.R HIGH SCHOOL, SHORNUR, OTTAPPALAM TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER SHIHABUDHEEN @ SABU, AGED 31 YEARS,S/O.A.K.MOIDEEN ANURAG, Y.M.C.A ROAD, SHORNUR. BY ADV. SRI.M.V.BOSE RESPONDENT(S)/RESPONDENT: ----------------------------------- K.S.HARIDAS S/O.SACHIDANANDAN, 'AMRITHA'KALLIPPADAM, SHORNUR OTTAPPALAM TALUK, PALAKKAD DISTRICT. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 540 of 2010 --------------------------------------------- Dated this the 22nd day of March, 2010 J U D G M E N T This appeal is at the instance of the complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act wherein the cheque in question covers an amount of Rs.1,17,000/-. He preferred this appeal as he is aggrieved by the order dated 1.1.2010 in S.T.C.No.2668 of 2008 under Section 256(1) of the Code of Criminal Procedure, acquitting the accused. 2. Learned counsel submitted that the complainant could not appear on the date of the impugned order as the Power of Attorney Holder, who is prosecuting the complaint, was unable to attend the court due to health reasons. On a perusal of the impugned order, it appears that the only reason stated by the court below is to the effect that the complainant was absent for adducing oral evidence in spite of the Crl.ANO.540 of 2010 :-2-: direction and therefore, the absence of the complainant is not condoned. From the cause title of the impugned order, it appears that the case pertains to the year 2008 and as indicated above, the cheque in question covers an amount of Rs.1,17,000/-. If that be so, according to me, the court below ought to have granted an opportunity to the complainant to prosecute the complaint effectively and especially, in the absence of proper and valid reason to reject the petition to condone his absence. In the above factual background, I am of the view that one more opportunity can be given to the complainant, but subject to terms. In the result, this Crl.Appeal is allowed setting aside the order dated 1.1.2010 in STC No.2668 of 2008 of the Judicial First Class Magistrate Court, Ottappalam on condition that the appellant/complainant deposits an amount of Rs.1,000/- (Rupees One Thousand only) in the court below. Accordingly, the appellant/complainant is directed to Crl.ANO.540 of 2010 :-3-: appear before the court below on 22.4.2010 on which date the learned Magistrate is directed to restore the complaint on file on his satisfaction that the appellant has paid the amount of Rs.1000/- as directed above and then to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. On depositing the amount by the complainant, Rs.500/- shall be given to the accused and the remaining Rs.500/- shall be deposited to the State Exchequer. The Criminal Appeal is allowed as above. V.K.Mohanan, Judge MBS/ Crl.ANO.540 of 2010 :-4-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.ANO.540 of 2010 :-5-: DATED: -2-2010