IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 25TH MARCH, 2010 / 4TH CHAITHRA, 1932 CRL.A.No. 601 of 2010 ------------------------- (AGAINST THE ORDER IN CRLP.329/2010 Dated 19/03/2010 SC.3379/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM) .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------------------ USHA, AGED 45 YEARS, W/O.RAMAKRISHNAN, THEKKINKATTIL HOUSE, KANNIYAMPURAM AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT(S): STATE AND ACCUSED: --------------------------------------------- 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. R.RAJAN, S/O.RAMACHANDRAN, AGED 47 YEARS, DOOR NO.25/251, ALAPARAMBU STREET, KANNIYAMPURAM AMSOM DESOM, OTTAPALAM TALUK. R1 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. -------------------------------------------------- Crl.A.NO. 601 OF 2010 -------------------------------------------------- Dated this the 25th day of March, 2010 J U D G M E N T By order dated 15.1.2010 in S.T.No.3379 of 2008, which is a case instituted upon the complaint preferred by the appellant for the offence punishable under Section 138 of the Negotiable Instruments Act, the accused was acquitted under Section 256(1) of the Cr.P.C. 2. Learned counsel submitted that the cheque in question covers an amount of Rs.40,000/- and there is no decision on merit. Learned counsel further submitted that a proper application was filed before the court below to condone the absence of the complainant as she was laid up due to severe fever. 3. From the impugned order, it can be seen that the learned Magistrate issued the order on the ground that in spite of the specific direction to the complainant to be present and to adduce oral evidence on the date of the impugned order, she has not turned up and no evidence CRA 601 OF 2010 :-2-: was adduced. But from the order, it appears that no reason is assigned by the learned Magistrate to dismiss the petition filed by the complainant to excuse her absence. From the cause title, it appears that the case pertains to the year 2008 and it is also borne out from the records that the cheque in question covers an amount of Rs.40,000/-. Under the above factual back ground, without assigning reason for rejecting the application of the complainant to excuse her absence, the order passed by the learned magistrate under Section 256(1) of Cr.P.C. appears to be not correct and the learned Magistrate ought to have granted one more opportunity to the complainant to prosecute the appeal. At the same time, it is also relevant to note that the complainant was absent in spite of the specific direction for her presence and the application for excusing the absence was not accompanied by any certificate showing the illness, if any. Under the above circumstances, I am of the view that this appeal can be disposed of on terms, which will be CRA 601 OF 2010 :-3-: sufficient to meet the ends of justice. In the result, this appeal is disposed of setting aside the order dated 15.1.2010 in S.T.No.3379 of 2008 of the Court of the Judicial Magistrate of First Class, Ottappalam on condition that the appellant/complainant deposits a sum of Rs.1000/- (Rupees One Thousand only) in the court below. Accordingly, the appellant/ complainant is directed to appear before the court below on 27.4.2010 and the court below is directed to restore the complaint on file on satisfaction that the complainant has deposited a sum of Rs.1000/- and to proceed with the complaint in accordance with law and procedure and to dispose of the same on merit. Out of Rs.1000/-, which will be deposited, Rs.500/- shall be given to the accused and the remaining shall be deposited into the State Exchequer. This Criminal Appeal is disposed of as above. V.K.MOHANAN, MBS/ Judge. CRA 601 OF 2010 :-4-: