IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 CRL.A.No. 2120 of 2011() ------------------------ ST.159/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... APPELLANT: PETITIONER/COMPLAINANT ------------------------------------ KAIRALI MOTOR FINANCE, NEDUMKANDOM, REP. BY POWER OF ATTORNEY HOLDER, REJI, S/O.THOMAS, NIRAPPEL HOUSE, PULIYANMALA. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENTS: --------------- 1. SATHEESH KUMAR, S/O.VELUPILLAI, MAYAVILASOM HOUSE, LAKSHMICOVIL P.O., PAMBANAR, PEERMADE, IDUKKI DISTRICT, PIN-686001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. LOWSY A THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 2120 of 2011 ---------------------------------------- Dated the 21st day of December, 2011 JUDGMENT This appeal is preferred at the instance of the complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act as it is aggrieved by the order dated 30.9.2010 of the court of the Judicial First Class Magistrate, Kattappana, in S.T.No.159 of 2008, by which the learned Magistrate, acquitted the accused under section 204(4) Cr.P.C. 2. The learned counsel for the appellant submitted that, though the court has taken cognizance for the offence punishable under section 138 of the Negotiable Instruments Act, based upon the complaint preferred by the appellant connected with dishonor of a cheque, which covers an amount of Rs.32,500/-, there is no decision on merit. It is the further submission of the learned counsel that cognizance was taken upon the complaint on 28.1.2008 and till 25.8.2011, the case was being adjourned repeating issuance of summons and the complainant was also cooperating with the court for securing CRL A. 2120/11 2 the presence of the accused and he was prosecuting the complaint effectively. It is the further submission of the learned counsel that, on 25.8.2011, as the accused failed to appear in spite of the summons issued earlier, bailable warrant was ordered for which step has to be taken within 3 days and posted the case on 30.9.2011. According to the learned counsel, the clerk attached to the counsel for the complainant in the trial court failed to pay the process within the time as per the proceedings dated 25.8.2011 of the learned magistrate and consequently, the impugned order was passed acquitting the accused. Therefore, the learned counsel submitted that one more opportunity may be given to the complainant to prosecute the matter and to have a decision on merit. 3. I have carefully considered the contentions advanced by the learned counsel for the appellant and I have also perused the impugned order of the learned Magistrate. 4. The reason for issuing an order under section 204(4) Cr.P.C is stated as “no steps taken”. On a reading of section 204 (4), it can be seen that the Magistrate is not authorised to acquit the accused but the only option of the learned Magistrate CRL A. 2120/11 3 is to dismiss the complaint. Instead of dismissing the complaint, the learned Magistrate has acquitted the accused. The legal consequence of the order dismissing the complaint and acquitting the accused are entirely different. Therefore, the order impugned in this appeal is not legally sustainable under section 204(4) Cr.P.C though the order purported to be issued is under that provision. 4. From the contention raised by the counsel for the appellant, it appears that the cheque in question covers an amount of Rs.32,500/- and though cognizance was taken, on the basis of the complaint preferred by the appellant, there is no decision on merit. It is also relevant to note that though cognizance was taken on 28.1.2008, the process was not complete and the presence of the accused was not secured till 25.8.2011. Therefore, it can be concluded that the complainant was earnestly prosecuting the matter effectively till 25.8.2011. Therefore, according to me, though the process was not paid in time, on the basis of the proceedings dated 25.8.2011 of the learned Magistrate, one more opportunity can be given to the complainant to prosecute the matter and to have a decision on CRL A. 2120/11 4 merit. In the result, this appeal is allowed setting aside the order dated 30.9.2011 of the Judicial First Class Magistrate, Kattappana, in S.T.No.159 of 2008. Accordingly, the appellant/complainant is directed to appear before the trial court on 23.1.2012 on which date, the learned Magistrate is directed to restore the complaint on file and to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. V.K.MOHANAN, JUDGE kvm/- CRL A. 2120/11 5 CRL A. 2120/11 6