IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 CRL.A.No. 1726 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.291/2011 Dated 08/04/2011 CC.731/2008 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... APPELLANT(S): APPELLANT/COMPLAINANT ----------------------------------- IBRAHIMKUTTY.T.A AGED 58 YEARS, S/O.ABDUL KHADER, HEAVEN COTTAGE, VANDANAM PO, ALAPPUZHA. BY ADVS. SRI.R.VIJAYACHANDRAN SRI.C.A.CHACKO RESPONDENT(S): --------------- 1. IQUBAL, S/O. KARUMADI LATHEEF NORTH OF KARUMADI BRIDGE, KARUMADI PO, ALAPPUZHA PIN-688 564 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVA KUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: amk. V.K. MOHANAN, J. --------------------------------------------------- Crl. A No. 1726 OF 2011 --------------------------------------------------- DATED THIS THE 11th DAY OF OCTOBER, 2011 JUDGMENT The complainant in a prospection for the offence under Section 138 of Negotiable Instruments Act is the appellant as he is aggrieved by the order dated 28-09-2010 in CC No.731 of 2008 of the Court of Judicial First Class Magistrate-I, Ambalapuzha. By the above order the learned Magistrate has acquitted the accused under Section 256 Cr.P.C. 2. Counsel for the appellant submitted that the cheque in question covers `.20,000/- and the impugned order was passed by the learned Magistrate after the proceedings under Section 313 of Cr.P.C. It is also submitted by the learned counsel for the appellant that the complainant could not appear before the court below due to marriage of his son. 3. On a perusal of the order impugned it appears that the complainant did not appear before the Court below inspite of several adjournment. The submission made by the counsel is that complainant could not appear before the court below due to the marriage of the complainant's son. However, it is a fact that cognizance was taken up on the complaint and the trial was proceeded certain extent and the accused was questioned under Section 313 of Cr.P.C. If that be so, according to me it is just and Crl.A No.1726/2011 -2- proper to grant an opportunity to the complainant to complete the trial and to have a decision on merit. But because of the negligence on the part of the complainant, such an opportunity can be granted only on terms. In the result, this appeal is disposed of setting aside the order dated 28-09-2010 of the court of the Judicial First Class Magistrate-I, Ambalappuzha in CC No.731/2008, on condition the appellant/complainant deposit a sum of `.1,500/- in the trial court within one month from today. Accordingly, the learned Magistrate is directed to restore the above case on the file of the court below on 11-11-2011, on which date the appellant/complainant shall appear before the trial court. Learned Magistrate is directed to proceed with complaint, on his satisfaction that the complainant deposit the above amount and to dispose the case on merit in accordance with the procedure and law. On the appearance of the accused a sum of `.1,000/- shall be paid to the accused on his appearance and the remaining amount of `.500, out of the cost, shall be deposited in the State Exchequer. Sd/- V.K. MOHANAN, JUDGE. AMG True copy P.A to Judge