IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH OCTOBER, 2008 / 14TH ASWINA 1930 CRL.A.No. 1717 of 2007 (D) (ST.NO.3073/2005 of JUDL.FIRST CLASS MAGISTRATE, ALATHUR) .................... APPELLANT/COMPLAINANT: --------------------------------- KESAVADAS, S/O.GANGADHARAN, AGED 45 YEARS, CHERIYATH HOUSE, VALLENGHI, NENMARA, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENTS/ACCUSED/STATE: ------------------------------------------ 1. RAJAN, S/O.RAMAN, KANDUMARI HOUSE, KOLLONGODEKULAMBIL, VITHINASSERY, NENMARA, CHITTUR, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.JOHNSON P.JOHN FOR R1 SRI.BABY MATHEW FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 1717 of 2007 D --------------------------------------------- Dated this the 6th day of October, 2008 J U D G M E N T Challenging the order of acquittal passed by the court below under Section 256(1) of the Code of Criminal Procedure in S.T.No.3073 of 2005, the appellant/ complainant preferred this appeal. 2. The above case was instituted in the court of the Judicial First Class Magistrate, Alathur upon a private complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'). The case of the complainant is that the accused had borrowed a sum of Rs.60,000/- and towards the discharge of the said liability, the accused had issued a cheque dated 10.8.2005 which, on presentation for encashment, was dishonoured for want of sufficient fund. Though notice was sent to the accused intimating the dishonour of the cheque and demanding the amount, according to the complainant, the accused did not pay the amount and therefore, he approached the court by filing the complaint. The court took cognizance on 25.11.2005 Crl.Appeal NO.1717 of 2007 :-2-: and subsequently, the matter was posted for appearance of the accused. According to the appellant, the case in the court below stood for consideration on several dates on which dates, the complainant was present either in person or through his counsel. It is also averred in the appeal memorandum that the complainant was present on 28.6.2006 with proof affidavit, a copy of which has already been given to the accused, but the case was adjourned since the accused was ready for settlement and thus, the matter was adjourned for settlement at the instance of the accused. On 16.8.2006, when the matter was taken up for consideration, according to the appellant, the appellant and his counsel could not reach the court in time due to traffic block and the court had passed the impugned order. Counsel for the appellant submits that the observation of the court below that the complainant was absent during the last posting date is not correct. 3. Going by the facts stated above, especially Crl.Appeal NO.1717 of 2007 :-3-: regarding the proceedings in the court, which is not controverted, it appears to me that the complainant was not negligent in prosecuting the complaint. It is true that on 16.8.2006, neither the complainant nor his counsel was present. Since the matter was posted for evidence as observed by the court below, in the absence of the complainant, the court was not in a position to proceed further. Still then, considering the seriousness of the allegations, it appears to me that an opportunity shall be given to the complainant to prosecute the complaint, which will be subject to terms. 4. In the result, this appeal is allowed on condition of paying a sum of Rs.3000/- by the complainant. The parties are directed to appear before the court below on 7th November, 2008 on which date the court shall take the complaint on file and on satisfaction that the complainant has paid a sum of Rs.3000/-, the court is directed to proceed with the complaint and dispose of the same on merit. Out of Crl.Appeal NO.1717 of 2007 :-4-: Rs.3000/-, Rs.1000/- shall be given to the accused as cost and the balance of Rs.2000/- shall be deposited in the State Exchequer. V.K.Mohanan, Judge MBS/ Crl.Appeal NO.1717 of 2007 :-5-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- O R D E R DATED: -9-2008 Crl.Appeal NO.1717 of 2007 :-6-: