IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 CRL.A.No. 2745 of 2009() ------------------------ CRLP.1116/2009 Dated 18/12/2009 ST.343/2009 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... APPELLANTS: PETITIONER/COMPLAINANT ------------------------------------ N.A.ISSAC, S/O. N.I.ABRAHAM, MANAGING PARTNER, NEDUMPILLIL CHITS AND FINANCE KOLUTHARA'S BROADWAY BAZAR, BROADWAY, COCHIN. BY ADV. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): ACCUSED ---------------------- 1. BINISH LAL, KUNNEL HOUSE, VANNAPPURAM.P.O., THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No.2745 of 2009 ---------------------------------------- Dated 8th Day of June, 2010 JUDGMENT This appeal is preferred by the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act and he challenges the order dated 26.9.2009 in STC No.343 of 2009 of the court of the Chief Judicial Magistrate, Thodupuzha, 2. Initially the appellant preferred Crl.L.P.No.1116/2009 seeking leave of this Court to file appeal and this Court, by order dated 18.12.2009, granted leave, consequently, notice was issued to the Ist respondent and he had received the same. Thus, the service is complete on the Ist respondent. 3. The learned counsel for the appellant submitted that the learned Magistrate committed mistake in acquitting the accused under section 256(1) Cr.P.C at the threshold of the proceedings. According to the learned counsel, there was no wilful laches or negligence on the CRL.A.No.2745/09 -:2:- part of the complainant or his counsel in appearing before the court below. The learned counsel pointed out that the date of the complaint is 27.8.2009 and it was adjourned to 26.9.2009 for hearing on which date, the impugned order was passed by the learned Magistrate. 4. Going by the averments and the facts stated in the appeal memorandum, it can be seen that the cheque in question covers an amount of 76,000/-. From the impugned order it is not discernible as to for what purpose the case stood posted on 26.9.2009. From the available datas in the impugned order, it appears that so far, the accused has not appeared and it is also not discernible as to whether summons ordered against the accused. After having taken cognizance upon the complaint preferred by the appellant/complainant, it is not proper on the part of the learned Magistrate, in acquitting the accused under section 256(1) Cr.P.C at the threshold of the proceedings. It is also relevant to note that even if the complainant was present in person, there will not be any CRL.A.No.2745/09 -:3:- turn-out since the accused has not entered appearance so far. Under the above factual background, I am unable to sustain the impugned oder of the learned Magistrate. Consequently, the same is liable to be set aside. In the result, this appeal is disposed of setting aside the order dated 26.9.2009 in STC No.343/2009 in the court of Chief Judicial Magistrate, Thodupuzha and the complainant is directed to appear before the said court on 8th July, 2010 on which date, the learned Magistrate is directed to restore the complaint on file and to proceed in accordance with the procedure and law and to dispose of the same on merit. V.K.MOHANAN, JUDGE kvm/- CRL.A.No.2745/09 -:4:- The Apex Court in its recent decision in Damodar S.Prabhu v. Sayed Babalal H (J.T.2010 (4) SC 457), has held that in a case of dishonour of cheques, compensatory aspect of the remedy should be given priority over the punitive aspect. If there is any default on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to procure the presence and to execute the sentence and for realisation of the amount. Execution of CRL.A.No.2745/09 -:5:- warrant if any pending against the revision petitioner shall be deferred till ...........2010. V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..