IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH NOVEMBER, 2011 / 3RD AGRAHAYANA ,1933 CRL.A.No. 1993 of 2011 -------------------------------- (LEAVE GRANTED AS PER ORDER DTD.28.10.2011 IN CRLP.966/201) (AGAISNT THE ORDER IN CC.2009/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA) .................... APPELLANT(S): COMPLAINANT --------------------- C.M.SHANAVAS, CHENTHARA HOUSE, THAIKKATTUKARA, PROPRIETOR, PERIYAR GROUP OF PUBLICATIONS, P.B.NO.153,ALUVA. BY ADV. SRI.P.V.ELIAS RESPONDENTS(S): ACCUSED AND STATE -------------------------- 1. M.P.NISSAR, M.P.HOUSE, PONNANI 691006. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-31. R2 BY PUBLIC PROSECUTOR SMT.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1993 of 2011 ---------------------------------------- Dated this the 24th day of November, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 11.3.2009 in C.C.No.2009 of 2004 of the court of Judicial First Class Magistrate-I, Aluva by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. Heard the counsel for the appellant. I have perused the judgment of the trial court, impugned in this appeal. 3. Counsel for the appellant submitted that the cheque in question covers an amount of `.21,000/- and according to the learned counsel, though the court has taken cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act, there is no decision on merit. Learned counsel further submitted that the Clerk attached to the counsel for the complainant in the trial CRL.A.NO.1993 of 2011 :-2-: court committed a mistake in noting down the date of the posting of the case and consequently, when the case was called, there was no representation and therefore, the learned Magistrate issued the above order. Therefore, it is the submission of the learned counsel that an opportunity may be given to the complainant to prosecute the matter on merit. 4. In the light of the submission made by counsel for the appellant and from the appeal memorandum, it appears that the cheque in question covers an amount of `.21,000/- and it is further clear that the court has taken cognizance upon the complaint preferred by the appellant, but there is no decision on merit. But the reason stated in the appeal memorandum and submitted by the learned counsel for the non-representation of the complainant on the date of the impugned order is not acceptable since it was incumbent on the complainant and his counsel to follow the procedure of the court and to make available themselves in the court when the case was taken for consideration. It CRL.A.NO.1993 of 2011 :-3-: is also relevant to note that when the leave petition was filed prior to the filing of the present appeal, there was delay and the said delay petition as well as the leave petition were allowed without hearing the accused. Considering the entire facts which I indicated above, I am of the view that the appellant can be granted one more opportunity to prosecute the matter on merit and to have a decision thereon, but such an opportunity can be given only on terms as there were laches from the part of the appellant in prosecuting the matter effectively and properly both in the trial court as well as in this Court and considering the interest of the accused and the State. In the result, this appeal is disposed of setting aside the order dated 11.3.2009 in C.C.No.2009 of 2004 of the court of Judicial First Class Magistrate-I, Aluva on condition that the appellant/complainant deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 23.12.2011 CRL.A.NO.1993 of 2011 :-4-: on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposited a sum of `.1500/- as directed above and appeared before the court below, the learned Magistrate is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused, a sum of `.1000/-, out of the above amount, shall be given to the accused and the remaining amount of `.500/- shall be deposited in the State Exchequer. It is made clear that in case of any failure on the part of the appellant either in appearing before the court below on the date fixed above in person or through his pleader or in depositing the above amount within the time stipulated, this order will stand vacated and consequently, the appeal will stand dismissed. The Criminal Appeal is disposed of as above. V.K.MOHANAN, MBS/ Judge CRL.A.NO.1993 of 2011 :-5-: Counsel for the appellant submitted that originally the case was filed before the Judicial First Class Magistrate Court-I, Tirur as C.C.No.1205 of 2007, but subsequently, the case was transferred to the present trial court wherein the same was refiled as S.T.No.100 of CRL.A.NO.1993 of 2011 :-6-: 2010. According to the learned counsel, after transfer of the case, the first posting was on 28.7.2010 on which date the complainant was present. But, the case was adjourned to 11.8.2010 on which date the complainant could not appear before the court, but his absence was condoned and subsequently, the case was adjourned to 24.9.2010. According to the learned counsel, since the complainant went for pilgrimage to Haridwar on 10.9.2010, he could not appear before the court during the next posting date on 24.9.2010, but he was represented by his counsel and a formal application was filed to excuse his absence. It is also the submission of the learned counsel that the cheque in question covers an amount of `.50,000/- and therefore, one more opportunity may be given to the complainant to prosecute the matter on merit. 4. I have carefully considered the submission of the learned counsel for the appellant and perused the judgment of the trial court. 5. In the light of the submission made by the counsel for the CRL.A.NO.1993 of 2011 :-7-: appellant and in view of the order, it can be seen that the cheque in question covers an amount of `.50,000/- and the court has already taken cognizance for the offence under Section 138 of the N.I.Act. But there is no decision on merit. It is also relevant to note that the impugned order was passed by the trial court on the third posting of the case after receiving the file from the Judicial First Class Magistrate Court-I, Tirur. On the first posting date of 28.7.2010, the complainant was present. On 11.8.2010, though the complainant was absent, his absence was condoned by the learned Magistrate, but the case was adjourned with a specific direction, directing the complainant to be present on the next posting date i.e., on 24.9.2010. From the order, it appears that though the complainant was absent on 24.9.2010, an application was moved on behalf of the complainant to condone his absence as he had gone pilgrimage to Haridwar. Therefore, it cannot be said that the complainant was negligent in prosecuting the matter, but at the very same time, it is clear that he had CRL.A.NO.1993 of 2011 :-8-: not complied with the direction issued by the learned Magistrate on 11.8.2010, for his presence on 24.9.2010. As the cognizance has already been taken for the offence under Section 138 of the N.I.Act connected with the cheque in question, for an amount of `.50,000/-, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter and have a decision on merit. Since there is lapse on the part of the complainant in appearing before the court in terms of the direction issued by the learned Magistrate, an opportunity as indicated above can be given only on terms. In the result, this appeal is disposed of setting aside the order dated 24.9.2010 in S.T.No.100 of 2010 of the court of Judicial First Class Magistrate-II, Tirur on condition that the appellant/complainant deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 22.10.2011 CRL.A.NO.1993 of 2011 :-9-: on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposits a sum of `.1500/- as directed above, the learned Magistrate is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused, a sum of `.1000/-, out of the above amount, shall be given to the accused and the remaining amount of `.500/- shall be deposited in the State Exchequer. The Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1993 of 2011 :-10-: V.K.MOHANAN, J. CRL.A.No. OF 20 CRL.A.NO.1993 of 2011 :-11-: JUDGMENT Dated:2. ..2011