IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 CRL.A.No. 2484 of 2008 -------------------------------- CC.168/2006 OF THE JFCM COURT – VII, THIRUVANANTHAPURAM. .................... APPELLANT: ----------------- SHAMNAD P., SAJEER MANZIL, MANKKATTUVILAKOM, ALUMOODU, KANIYAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.D.AJITHKUMAR RESPONDENT: ------------------- 1. M.SULAIMAN, PANAYIL VEEDU, M UZHUTHIRIYAVATTOM, PALLIPURAM P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. PUSHPALATHA M.K. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No.2484 of 2008 ---------------------------------------- Dated the 22nd Day of June, 2010 JUDGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant as he is aggrieved by the order of acquittal recorded by the court below under section 256(1) Cr.P.C. 2. The leaned counsel for the appellant submitted that the complainant was regularly appearing on all posting days and on the date of the impugned order, he could not appear as he was laid up and though a request was made to condone his absence, the same was not considered. Thus, according to the learned counsel, an opportunity may be granted to the petitioner to prosecute the matter on merit. 3. From the order impugned, it appears that the complainant was absent and no representation was made. It is also discernible from the order that there was a direction to the complainant to pay a cost for the previous dates absence. But the same was also not paid. Assigning the above reason, the learned Magistrate issued the order CRL.A 2484/08 -:2:- impugned. I find no illegality with the order of the learned Magistrate. 4. However, it appears that the cheque in question covers an amount of Rs.1,30,000/-. Along with the appeal memorandum, the appellant has produced Annexure-C which is the certified copy of B diary of the case which would show that the complainant was regularly appearing on all posting dates starting from 12.1.2006 to 14.8.2008. In the meanwhile the case was adjourned on two occasions under notification. On 5.4.2008, the case was made over to the Judicial First Class Magistrate-VII, Thiruvananthapuram. So the absence of the complainant occurred after transfer of the case to the present trial court. By producing Annexure A certificate, the learned counsel submitted that the accused was physically unable to attend the court on the date of the order. 5. Having regard to the facts and circumstances involved in the case, especially, when the cheque in question covers an amount of Rs.1,30,000/- and particularly, when the complainant was regularly appearing n all posting dates, I am of the view that one more opportunity can be given to the appellant to CRL.A 2484/08 -:3:- prosecute the mater on merit , but subject to terms In the result, this appeal is disposed of setting aside the order dated 8.8.2008 in C.C.No. 168 of 2006 on condition that the appellant deposits a sum of Rs.3000/- in the court below. Accordingly, the appellant/complainant is directed to appear before the trial court on 22nd July, 2010 on which date, the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant deposits the amount, he is further directed to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. On deposit of the above amount, a sum of Rs.1,500/- shall be paid to the accused on his appearance and the remaining amount shall be deposited into the State exchequer. This Crl.Appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.A 2484/08 -:4:- O.P.No. JUDGMENT Dated:..