IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 1ST SEPTEMBER, 2011 / 10TH BHADRA, 1933 CRL.A.No. 323 of 2007 ----------------------------- (LEAVE GRANTED AS PER ORDER IN CRL.L.P.NO.714 OF 2006 Dated 12/02/2007) (AGAINST THE ORDER IN CC.1011/2004 of COURT OF JUDL. MAGISTRATE OF FIRST CLASS-II (MOBILE), KOTTAYAM) .................... APPELLANT(S): PETITIONER/COMPLAINANT ---------------------- K.K.CHACKO, KURKKAKALAYIL HOUSE, CHINGAVANAM P.O, KOTTAYAM. BY ADV. SRI.JOSE JOSEPH (MANNAR) RESPONDENTS(S): RESPONDENT/ACCUSED & STATE -------------------------- 1. JACOB JOHN,KALLICHERRYIL HOUSE, CHINGAVANAM P.O,KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 323 of 2007 ---------------------------------------- Dated this the 1st day of September, 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 herein as he is aggrieved by the order dated 1.6.2005 of the Judicial First Class Magistrate Court-II, Kottayam in C.C.No.1011 of 2004 by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. From the endorsement that contained in the file, it appears that initially by order dated 12.2.2007 in Crl.L.P.No.714 of 2006, this Court granted leave under Section 378(4) of the Cr.P.C. for filing the present appeal and thus, the appeal comes up for hearing. Though notice was ordered in the above appeal on 21.2.2007 and the same was served on the respondents, nobody has turned up and no objection is raised in allowing the appeal. 3. Counsel for the appellant submitted that the cheque in CRL.A.NO.323 of 2007 :-2-: question covers an amount of `.50,000/- and there was no wilful negligence or laches on the part of the complainant in appearing before the court below. According to the learned counsel, after several coercive steps, the accused took bail only on 9.3.2005 from the chamber of the learned Magistrate of the trial court and thereafter, originally the case was posted to 17.5.2005 and there was an endorsement to that effect in the A diary of the court below and the same was noted down by the Clerk of the counsel for the complainant in the trial court, but subsequently the said date is corrected as 2.4.2005 and thus, when the case was taken on 2.4.2005, there was no representation for the complainant and subsequently, the Magistrate issued the impugned order. 4. As ordered by this Court, the Presiding Officer of the trial court furnished the order sheet in C.C.No.1011 of 2004. I have perused the same from where it can be seen that the accused appeared before the court below on 9.3.2005 and that too, after initiating coercive steps. But, it is not discernible from the order sheet that the CRL.A.NO.323 of 2007 :-3-: bail was granted from the chamber of the learned Magistrate. The appellant has also not produced any document to show that there was an initial posting on 17.5.2005 after granting bail to the accused, as submitted by counsel for the appellant. 5. However, from the proceedings of the trial court which I mentioned earlier and from the submission of the learned counsel, it can be seen that the cheque in question covers an amount of `.50,000/- and the court has already taken cognisance for the offence under Section 138 of the N.I.Act, but there is no decision on merit. Though counsel submitted that the bail was granted from the chambers of the learned Magistrate on 9.3.2005 and initially, the posting date is shown as 17.5.2005 and the same was subsequently corrected as 2.4.2005, there is no material to substantiate the above submission. Thus, it can be seen that there was negligence on the part of the complainant in appearing before the court below, though he had been prosecuting the matter anxiously. Under the above circumstances, according to me, it is only just and proper to grant one CRL.A.NO.323 of 2007 :-4-: more opportunity to the appellant herein/complainant to prosecute the matter on merit, but that opportunity can be given only on terms since there was negligence on the part of the complainant. In the result, this Criminal Appeal is disposed of setting aside the order dated 1.6.2005 in C.C.No.1011 of 2004 of the Judicial First Class Magistrate Court-II, Kottayam on condition that the appellant deposits a sum of `.3000/- (Rupees Three Thousand only) in the trial court within one month from today. Accordingly, the learned Magistrate is directed to restore the complaint on file on 10.10.2011 on which date the appellant is directed to appear before the trial court and the learned Magistrate, on his satisfaction that the appellant/ complainant has deposited the amount as ordered above, 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. In case of the deposit of the above amount and on the appearance of the accused, a sum of `.1500/- shall be paid to the accused and the remaining amount shall be deposited in the State Exchequer. As the case pertains to the CRL.A.NO.323 of 2007 :-5-: year 2004, the learned Magistrate is directed to expedite the trial and dispose of the same as early as possible. This Criminal Appeal is disposed of as above. MBS/ V.K.MOHANAN,Judge CRL.A.NO.323 of 2007 :-6-: V.K.MOHANAN, J. CRL.A.No. OF 20 JUDGMENT Dated:2. ..2011 CRL.A.NO.323 of 2007 :-7-: