IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 CRL.A.No. 1140 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.402/2011 Dated 07/06/2011 ST.74/2010 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... APPELLANT(S): COMPLAINANT ------------------------- A.C. SUNNY, PROPRIETOR, CITY BOOTS FOOT WEAR, ANDAMUKHAM, KOLLAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S): ACCUSED/STATE ---------------------------- 1. H. NAZARKHAN, PROPRIETOR, A TO Z FOOT WEAR, SHOPPING COMPLEX, PRIVATE BUS STAND, CHINNAKKADA, KOLLAM. NOW RESIDING AT C/O.ANZARKHAN BISMI TRADERS, KOOTTIKADA COMPLEX, PAIKKADA ROADM KOLLAM-691001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. Appeal No.1140 of 2011 -------------------------------------------- Dated this the 13th day of July, 2011 JUDGMENT The complainant is the appellant. The challenge in this appeal is against the order dated 31.3.2010 of the court of Judicial First Class Magistrate-III, Kollam in ST.No.74/2010 by which the learned Magistrate acquitted the accused u/s. 256(1) of Cr.P.C. in which the allegation that the accused committed the offence punishable u/s.138 of the NI Act. 2. The learned counsel for the appellant submitted that the complaint in the above case covers 4 cheques for a total sum of Rs.32,000/- and though the court has taken cognizance for the said offence there is no decision on merit. According to the learned counsel, the complaint was originally filed in the Chief Judicial Magistrate Court, Kollam wherein cognizance was taken and though the case stood posted for evidence on 24.10.2010 in the court of Crl. Appeal No.1140 of 2011 2 Chief Judicial Magistrate, the case was made over to the present trial court and the transfer of those case was not intimated to the complainant or his counsel and therefore, nobody has appeared before the trial court on 22.3.2010 and also on the subsequent date i.e on 31.3.2010, on which date the impugned order was passed. 3. A learned Judge of this Court by order dated 7.6.2011 in Crl.M.P.No.402/11 leave was granted and consequently, the present appeal is preferred. 4. As I indicated above, the 4 cheques involved in the above case covers a total amount of Rs.32,000/- and the trial court has already taken cognizance for the offence u/s.138 of the NI Act, but there is no decision on merit. I am unable to accept the contention of the learned counsel that the case was transferred from the court of Chief Judicial Magistrate to the present court without any notice to the counsel concerned especially, in the absence of any materials to that effect. However, it is a fact that, though cognizance was taken there is no order on merit. Crl. Appeal No.1140 of 2011 3 Therefore, according to me, the petitioner can be granted one more opportunity to prosecute the matter on merit. In the result, this appeal is disposed of setting aside the order dated 31.3.2010 in ST.No.74/2010 of the court of Judicial First Class Magistrate-III, Kollam. Accordingly, the complainant is directed to appear before the trial court on 16.8.2011, on which date the learned Magistrate is directed to restore the complaint on file and to proceed to dispose the complaint on merit in accordance with the procedure and law. V.K.MOHANAN, JUDGE. pm/