IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 CRL.A.No. 1459 of 2011() ------------------------ STC.252/2009 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... APPELLANT(S): COMPLAINANT ------------------------- M.C.ASHRAF, AGED 47 YEARS, S/O.T.P.EISSA, NIZWA PALACE, NEAR YOUTH CONGRESS OFFICE, P.O.MUZHAPPILANGAD, KANNUR DISTRICT. BY ADV. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN RESPONDENTS: ACCUSED ---------------------- 1. V.C.ABDUL RAHOOF, S/O.THANDAKANDY IBRAHIM, MUBARAK MANZIL AVERA, P.O.KADALAI, KANNUR, PIN 673001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. R1 BY ADV. SRI P.USHAILAJAN R2 BY P.P. SRI K.S. SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2011, ALONG WITH CRL.A NOS. 1461 & 1462 & 1465 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. Nos1459, 1461, 1462 & 1465 of 2011 ---------------------------------------- Dated the 19th day of August, 2011 JUDGMENT The above appeals, preferred by the complainant in separate cases pending before the Addl.Chief Judicial Magistrate court, Thalassery, are instituted for the offence punishable under section 138 of the Negotiable Instruments Act and the challenge in these appeals are against the orders acquitting the accused under section 256(1) Cr.P.C. As the parties to the above appeals are one and the same, and the challenge in these appeals are against the orders of the same trial court and the orders are similar in nature, based upon identical facts and circumstances, these appeals are heard together and are being disposed of by this common judgment. 2. I have heard Sri V.V.Asokan, the learned counsel appearing for the appellants in all the above appeals and Sri P.U. Shailajan, the learned counsel appearing for the Ist respondent in the appeals. 3. Crl.A No.1459 of 2011 is preferred challenging the order CRL.A. 1459/11 & Co cases. 2 dated 13.8.2010 in S.T.Case No.252 of 2009 on the file of the Additional Chief Judicial Magistrate, Thallessery wherein the cheque amount involved is Rs.2.5 lakhs and, in Crl.A Nos.1461, 1462 and 1465 are filed against the orders dated 31.8.2010 respectively in S.T.Case Nos.1023, 1048 and 1024 of 2008. 4. Before the filing of the present appeals, the appellants herein had preferred Special Leave Petitions and as there was delay in filing the leave petitions, the delay was condoned on terms and accordingly, in each case, the appellant has paid a sum of Rs.500/- to the Ist respondent in each case and thus, when the above Crl.L.Ps came up for consideration, this court allowed the same by separate orders. 5. From the impugned orders, in each appeal, it can be seen that the learned Magistrate has already taken cognizance for the offence under section 138 of the NI Act but there is no decision on merit. From the orders impugned it can further be seen that, even though the complainant was given chance repeatedly, he remained absent and was not ready for hearing and to adduce evidence. 6. The counsel for the appellant submitted that the CRL.A. 1459/11 & Co cases. 3 complainant could not appear and adduce evidence before the court as he is employed in Gulf country. It is the further submission of the learned counsel that, as the cheque in question in each case covers huge amount, one more opportunity may be given to the complainant to prosecute the cases on merit. Whereas, the counsel for the first respondent vehemently submitted that the reason stated by the appellant/complainant for his absence and not giving evidence in time is not correct and the appellant/complainant has no consistent case for his absence. Thus according to the learned counsel for the Ist respondent, the complainant is negligent in prosecuting the matter and therefore the appeals are liable to be dismissed. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and also the counsel for the Ist respondent and I have perused the orders impugned. 8. As I indicated earlier, the cheque in question in each case covers huge amount, and the total amount would come about 9 lakhs. It is also a fact that the court has already taken cognizance for the offence under section 138 of the NI Act upon the complaint in each case preferred by the appellant. But there CRL.A. 1459/11 & Co cases. 4 is no decision on merit. It appears that the court below was constrained to issue such an order because of the non cooperation of the complainant and therefore, it cannot be said that the orders passed by the court below are illegal or unsustainable. But at the same time, it is pertinent to note that even though cognizance was taken for the offence under section 138, there is no decision on merit and therefore, it is only just and proper to grant one more opportunity to the appellant/complainant to prosecute the cases on merit. Because of the lapse on the part of the complainant, in appearing before the court below in time and prosecuting the matter, which finally led to the litigation before this court, I am of the view that while granting further opportunity, the same can be done only on terms. In the result, all the above appeals are disposed of setting aside the orders impugned in those appeals, on condition that the appellant/complainant deposits a sum of Rs.1000/- (Rs.One thousand only) in S.T.Case No.1048/2008 and Rs.1500/- each in S.T.Case Nos.1023/2008, 1024/2008 and 252/2009. Accordingly, the appellant/complainant in the above appeals is CRL.A. 1459/11 & Co cases. 5 directed to appear before the trial court on 26.9.2011. The learned Magistrate is directed to restore ST Case No.1048 of 2008 in Crl.A.No. 1462/11 and, on satisfaction of the learned Magistrate that the appellant/complainant deposits a sum of Rs.1000/-, proceed with the case in accordance with the procedure and law and dispose of the same on merit. On deposit of the above amount, a sum of Rs.500/- shall be paid to the accused on his appearance and the remaining amount shall be deposited in the State ex chequer. Similarly, in S.T.Case Nos.1023/08, 1024/08, and 252 of 2009 also, on the satisfaction of the satisfaction of the learned Magistrate that the complainant has deposited the amount as directed above, he shall proceed with the cases in accordance with the procedure and law and dispose of the same on merit. On deposit of the amount, as directed above, Rs.500/- shall be given to the accused in each case on his appearance and the remaining amount shall be deposited in the State Ex chequer. The Ist respondent/accused is also directed to cooperate with the trial and he is further directed to appear before the trial court on 26.9.2011, the date indicated above for the appearance of the CRL.A. 1459/11 & Co cases. 6 complainant, as undertaken by the counsel for the Ist respondent. As the cases pertain to the year 2008, the learned Magistrate will see that the trial is expedited and he is further directed to dispose of the cases as early as possible. V.K.MOHANAN, JUDGE. KVM/- CRL.A. 1459/11 & Co cases. 7