IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 CRL.A.No. 1693 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.835/2011 Dated 20/09/2011 ST.143/2009 of JUDL.MAGISTRATE OF FIRST CLASS, PERAMBRA .................... APPELLANT(S): COMPLAINANT ------------------------- AJMAL, S/O.SALEEM, PUTHIYATH HOUSE, ATHYODI P.O., KOZHIKODE. BY ADV. SRI.K.P.SUDHEER SMT.M.SINDHU THANKAM RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. K.P.ALBERT PRAKASH, PEON, B.E.M.U.P. SCHOOL, OTTAPALAM-679101, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. Appeal No.1693 of 2011 -------------------------------------------- Dated this the 3rd day of October, 2011 JUDGMENT The complainant in a prosecution for the offence u/s.138 of the NI Act is the appellant, as he is aggrieved by the order dated 27.11.2010 in ST No.143/09 of the court of Judicial First Class Magistrate-I, Perambra, by which his complaint is dismissed. 2. The counsel for the appellant submitted that, though the case was adjourned on 18.11.2010, by an order dated 13.10.2010 on the basis of the request made by the counsel for the complainant in the trial court and after awarding cost of Rs.250/-, the counsel for the complainant could not appeared on 18.11.2010, but the matter was entrusted with another counsel to represent the complainant and also to make representation before the court that the cost has paid, no effective representation was made and consequently, the learned Magistrate adjourned the case to 27.11.2010 and on that day, the complaint was dismissed. The learned counsel for the complainant further submitted that an opportunity may be Crl. Appeal No.1693 of 2011 2 given to the appellant to prosecute the matter on merit. 3. I have carefully considered the submission of the counsel for the appellant. From the submission made by the counsel and from the averments contains the appeal memorandum, it appears that the cheque in question covers an amount of Rs.1,00,000/- and the prosecution presently being continued by the son of the original complainant. It is also relevant to note that though the court has taken cognizance for the offence u/s.138 of the NI Act, there is no decision on merit. 4. It is true, that the case was adjourned at the instance of the counsel for the complainant on 13.10.2010 by awarding the cost of Rs.250/-, but there was no representation on 18.11.2010, when the case was called and there was no representation to the effect that the cost ordered on 13.10.2010 was paid to the counsel for the accused. Therefore, I find no infirmities or illegalities with the observation made by the learned Magistrate, that no cost was paid on 18.11.2010. In the light of the facts which I indicated earlier, it can be seen that though cognizance was taken for the offence u/s.138 of the NI Act, connected with the cheque which covers an amount of Rs.1,00,000/-, there is no decision on merit. It is equally important to note that, there was Crl. Appeal No.1693 of 2011 3 negligence on the part of the complainant in appearing before the court and to co-operate with the trial of the case and it is further relevant to note that, though adjournment was given in favour of the complainant by awarding the cost, there is no evidence on record to show that the same was complied with. However, having regard to the facts and circumstances involved in this case, it is only just and proper to grant one more opportunity in favour of the complainant to prosecute the matter on merit, but such opportunity can be given only on terms, in spite of the fact even if Rs.250/- has already paid to the accused as claimed by the appellant. In the result, this appeal is disposed of setting aside the order dated 27.11.2010 in ST No.143/2009 of the court of Judicial First Class Magistrate-I, Perambra, on condition the complainant depositing a sum of Rs.2000/- in the trial court within one month from today. Accordingly, the learned Magistrate is directed to restore ST No.143/09 on its file on 3.11.2011, on which date, the complainant is directed to appear before the trial court and on satisfaction of the learned Magistrate that the complainant deposits the above amount, the learned Magistrate is further directed to proceed with the Crl. Appeal No.1693 of 2011 4 complaint in accordance with the procedure and law and dispose the matter on merit. On appearance of the accused, a sum of Rs.1,000/- out of the above amount shall be paid to him and the remaining amount of Rs.1,000/- shall be deposited in the State Exchequer. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE. pm/