IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 CRL.A.No. 638 of 2008() ------------------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.154/2008 Dated 27/03/2008 ST.NO.528/2003 OF JUDL.FIRST CLASS MAGISTRATE COURT, MANNARKKAD DATED 1/04/2006. .................... APPELLANT: (COMPLAINANT): ----------------------------------------------- ALI AKBER, S/O.KUNJAHAMMED, THOTTASSERY KALATHIL, VAZHELNKADU P.O., ANAMANGADU, MALAPPURAM. BY ADV. SRI.M.V.MATHEW RESPONDENTS: RES NO.1/ STATE (NON PARTY): --------------------------------------------------------------------------- 1. C.P.YOUSUFF,S/O.MUHAMMTHUSHA @ MUHAMMED, NATTUKAL, MANNARKKAD. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MOHAMMED-R2 BY ADV. SRI.K.P.MUJEEB- R1 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V. GIRI, J. ------------------------------- Crl.Appeal.NO. 638/ 2008 --------------------------------- Dated this the 19th day of August, 2008. JUDGMENT The complainant in ST.No.528/2003 on the files of the JFCM, Mannarkkad is the appellant herein. The accused was being prosecuted for the offence under section 138 of the Negotiable Instruments Act. According to the complainant, the accused had issued a cheque for an amount of 5.5.lakhs which on presentation was returned due to insufficiency of funds and hence the accused has committed the offence under section 138 of the Negotiable Instruments Act. A perusal of the order shows that on 1.4.2006 the court below found that the complainant was not present nor was there any representation on behalf of the complainant. Hence the accused was acquitted under section 256(i) of the Cr.P.C. 2. The default on the part of the complainant is referred to by this court in order dated 25.1.2008 by which apparently imposing heavy cost, this court had condoned the delay in filing the application for special leave. CRA.638 /2008 2 3. I have perused the diary extract in ST.No.528/2003 and it seems that on four posting days including the date of posting on which the accused was acquitted under section 256(i), the complainant was absent. An application was made on behalf of the complainant but the same was rejected. 4. Going by the diary extract it cannot be said that the court below had committed any illegality in acquitting the accused. But having heard learned counsel on both sides, having perused the diary extract and taking note of the fact that the prosecution was for dishonour of a cheque for an amount of Rs.5.5.lakhs and further taking note of the fact that the complainant had deposited the cost as directed by this court at the time of condoning the delay, I am of the view that the complainant is entitled to another chance. But this shall be a fairly heavy terms as such. The accused has been put to considerable trouble on account of the repeated adjournments sought by the complainant. In the result, the appeal is allowed. The order of acquittal is set aside, but on condition that the appellant/complainant pays to the accused or counsel for the accused an amount of CRA.638 /2008 3 Rs.20,000/- by way of cost on or before 30.9.2008. It is made clear that if the amount is not paid/deposited within the time, the order of acquittal shall stand confirmed and the appeal shall stand dismissed. If the cost is paid, the complaint would be restored to file and the parties shall appear before the court below on 28.10.2008 . V. GIRI, JUDGE. Pmn/ CRA.638 /2008 4