IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 CRL.A.No. 2195 of 2007() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.1114/2007 Dated 23/10/2007 CC.23/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... APPELLANT(S): COMPLAINANT IN C.C.NO.23/1999 ------------------------------------------- M/S.TAJ RUBBER INDUSTRIES, EDATHALA NORTH, ALUVA, REPRESENTED BY ITS MANAGING PARTNER, P.P.UVAIS, S/O.ZUBAIR HAJI, AGED 45 YEARS, KOUZARIYYA, EDATHALA NORTH, ALUVA. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.AJITH MURALI SMT.R.BEENA RESPONDENT(S): ACCUSED IN C.C.NO.23/1999 ---------------------------------------- 1. SHYAM KRISHNA BAJPAI, M/S.S.R.AGENCIES, 85, BASANTH VIHAR, HAMIRPUR ROAD, NAUBASTA, KANPUR, UTTAR PRADESH. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA C. NAYAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl.A. No.2195 of 2007 -------------------------------------------- Dated this the 29th day of July, 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 10.2.2003 of the court of Judicial First Class Magistrate-I, Aluva in CC No.23/1999 by which the learned Magistrate acquitted the accused u/s.256(1) of Cr.P.C. 2. The above appeal is preferred on getting special leave as ordered by this Court on 23.10.2007 in Crl.L.P.No.1114/2007. 3. Thus, when the above appeal come up for consideration by order dated 26.11.2007, this Court admitted the appeal and issued notice. The notice was sent to the 1st respondent through the Registrar of High Court, Uttarpradesh at Lucknow, showing the hearing date as 11.4.2008. It is also endorsed by the registry that notice was sent through the Registrar of the High Court of Uttarpradesh at Lucknow showing the hearing date as 11.4.2008 and notice was fixed at the address of respondent No.1. Thus, service is complete on respondent No.1. 4. The learned counsel for the appellant submitted that initially the respondent/accused appeared before the trial court, Crl.A. No.2195 of 2007 2 but subsequently, he absconded and therefore, the counsel for the complainant in the trial court sought time to collect the correct address of the absconded accused but the learned Magistrate refused to allow time and consequently, the impugned order was passed on 10.2.2003, acquitting the accused u/s.256(1) of Cr.P.C. The learned counsel further submitted that the cheque in question covers an amount of Rs.1,25,000/-. 5. From the above submission on the learned counsel for the appellant and from the available materials, it appears that based upon the complaint preferred by the complainant, cognizance has already been taken by the learned Magistrate for the offence u/s.138 of the NI Act in which the cheque covers an amount of Rs.1,25,000/- and instituted CC No.23/1999. Though the date of offence shown as 9.11.98 and the complaint was filed on 6.1.99, the hearing date shown as that of 10.2.2003. From the impugned order what can be gathered is that there was two posting date that on 7.2.2003 and 10.2.2003 and the complainant was not present either in person or through pleader and thus the accused is acquitted u/s.256(1) of Cr.P.C. No Crl.A. No.2195 of 2007 3 effective and substanting reason is forthcoming for recording such an acquittal and it is also not discernible whether the accused was present on the date mentioned in the impugned order. It is also not discernible for what purpose the case was posted on 7.2.2003 and 10.2.2003. If the case was posted as a normal or formal posting and not for the purpose of evidence or for any other specific purpose, according to me, l am unable to concur the order passed by the learned Magistrate, especially in the light of the submission made by the learned counsel for the appellant. It can be seen that the court has already taken cognizance, but there is no decision on merit. Therefore, according to me, it is only just and proper to grant an opportunity to the complainant to prosecute the matter on merit, especially when the cheque amount involved is Rs.1,25,000/- and when the accused was not available for the trial. In the result, this appeal is disposed of setting aside the order dated 10.2.2003 in C.C. No.23/1999 of the court of Judicial First Class Magistrate-1, Aluva. Accordingly, the learned Magistrate is directed to restore the case on file on 1.9.2011 on which date, the complainant/appellant is directed to appear Crl.A. No.2195 of 2007 4 before the trial court and co-operate with the court for speedy disposal of the case which pertained to the year 1999 and the learned Magistrate is directed to proceed with the case and dispose the same in accordance with the procedure and law, as expeditiously as possible. V.K.MOHANAN, JUDGE pm