IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 CRL.A.No. 2043 of 2010(A) ------------------------------------ [THE ORDER IN ST.NO.308/2007 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS - III, KOLLAM] .................... APPELLANT/COMPLAINANT: ----------------------------------------- PADMAVATHY AMMA, SANDYA BHAVAN, MUNDAKKAL WEST, KOLLAM. BY ADV. SRI.C.R.SIVAKUMAR. RESPONDENTS/ACCUSED: --------------------------------------- 1. C.VINOD, S/O.GANGADHARAN, PATTATHUVILA VEEDU, KADAPPAKKADA.P.O, KOLLAM, PIN – 691 008. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.WILSON URMESE, R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL.M.R. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 2043 of 2010 ---------------------------------------- Dated the 26th October, 2010 ORDER Challenge in this Crl.R.P is against the order of the learned Magistrate acquitting the accused in a prosecution for the offence under section 138 of N.I. Act, which was instituted at the instance of the appellant. 2. The learned counsel submitted that the cheque in question covers an amount of Rs.1,00,000/- and cognizance was already taken upon the complaint filed and the chief affidavit was filed in lieu of chief examination and thereafter, the matter was adjourned and on the date of the impugned order as well as on the previous date, the complainant was absent because of her knee pain. The learned counsel for the first respondent submitted that the case was adjourned on 14.8.2009 and on 20.8.2009 due to paucity of time for the court. 3. However, considering the facts and circumstances involved in the case, especially, when the cheque in question covers an amount of Rs.one lakh, and the complainant has adduced her evidence by way of an affidavit, it is only just and proper to proceed with the complaint in accordance with the procedure and law and to have a decision on merit. However, on the date of the impugned CRA. 2043/10 2 order, it is seen that though the accused was present, due to the absence of the complainant, he could not be cross examined and therefore, while granting one more opportunity to the complainant, appropriate terms can be imposed so as to meet the ends of justice, In the result, this appeal is disposed of setting aside the order dated 24.9.2009 in S.T.No.308/2007 of the court of Judicial First Class, Magistrate-III, Kollam on condition that the appellant/complainant pays a sum of Rs.750/- to the accused, either directly, or by depositing the same in the court below. Accordingly, the appellant/complainant is directed to appear before the trial court on 25.11.2010 on which day the learned Magistrate is directed to restore the complaint on file on his satisfaction that the appellant has paid/deposited the above said amount. The learned Magistrate is further directed to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. The learned Magistrate is directed to ensure that cost is paid to the accused. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRA. 2043/10 3 O.P.No. JUDGMENT Dated:..