IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 CRL.A.No. 619 of 2009 (CC.927/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI) .................... APPELLANT/COMPLAINANT: ---------------------------------------- P.N.SATHEESAN,S/O.NARAYANAN, MYLUTHARA HOUSE,KADEBHAGHAM, PALLURUTHY,COCHIN-6. BY ADV. SRI.T.MADHU RESPONDENTS/ACCUSED & STATE: -------------------------------------------------- 1. K.U.CHANDRAN,THUNDIPARAMBU HOUSE, PULLARDESOM ROAD,PALLURUTHY, COCHIN-6. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 619 of 2009 - B --------------------------------------------- Dated this the 2nd day of April, 2009 J U D G M E N T This is an appeal at the instance of the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'). 2. This Court granted leave on 20.3.2009. The cheque in question covered for an amount of Rs.50,000/-. As the complainant was not present on the date of the impugned order, the trial court straight away passed the impugned order. The only reason stated in the impugned order is that the complainant's presence was necessary as there was a specific direction to that effect. It is not discernible from the order that whether the matter was posted for evidence. 3. According to the learned counsel, a mistake was crept in noting down the actual posting date. However, it is clear that there is no decision on merit and the impugned order was passed because of the absence of the complainant and his counsel and that too due to the mistake crept when Crl.A. NO. 619 of 2009 :-2-: the posting date was noted. Therefore, it is only just and proper to give an opportunity to the complainant to prosecute the matter of course, subject to terms since there is an order for acquittal in favour of the accused. 4. In the result, this appeal is allowed setting aside the order dated 14.6.2004 in C.C.No.927 of 2002 on the file of the Judicial First Class Magistrate Court-II, Kochi on condition that the complainant deposits a sum of Rs.2500/- (Rupees Two Thousand Five Hundred only) in the court below out of which Rs.1000/- shall be given to the accused on his appearance and Rs.1500/- shall be deposited to the State Exchequer. Thus, the appellant is directed to appear before the court below on 27th April, 2009 on which date the court below is directed to take the complaint on file and on satisfying that the appellant/complainant has deposited the amount so ordered, the court below is directed to proceed with the complaint and to dispose of the same on merit. The Crl.Appeal is disposed of as above. V.K.Mohanan, MBS/ Judge Crl.A. NO. 619 of 2009 :-3-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N T Crl.A. NO. 619 of 2009 :-4-: DATED: -3-2009 Crl.A. NO. 619 of 2009 :-5-: