IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 CRL.A.No. 1545 of 2006() ------------------------ ST CASE NO.485/2004 OF THE JFCM, OTTAPPALAM) .................... APPELLANT(S): COMPLAINANT ------------------------- JOOBI S/O.BAHULAYAN, AGED 28 YEARS, KOLAZHI HOUSE, KODUNGALLOOR DESOM, MUNDAMUKHA AMSOM, OTTAPALAM TALUK. BY ADV. SRI.R.SREEHARI RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. MR.K.VASUDEVAN NAIR, S R V NILAYAM, CHERUTHURUTHY, PAINKULAM, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.A.CHACKO FOR R1 R2 BY P.P. SRI C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1545 of 2006 ---------------------------------------------- Dated 31st March, 2009. JUDGMENT This is an appeal at the instance of a complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, as he is aggrieved by the order of acquittal passed by the court below under section 256(1) Cr.P.C. 2. S.T.No.485/2004 was instituted in the court of Judicial First class Magistrate, Ottapalam on the basis of the complaint preferred by the appellant alleging that the accused issued a cheque for an amount of Rs.60,000/-, which when presented for encashment, was dishonoured for the reason account closed. Thus the complainant approached the court for prosecuting the accused for the offence under section 420 IPC and Section 138 of the Negotiable Instruments Act. The court took cognizance only for the offence under section 138 N.I.Act. Thus according to the complainant, he was prosecuting the complaint vigilantly, but on 26.5.2006, the date on which the impugned order was passed, the complainant could not appear before the court below on medical grounds and hence the order of acquittal passed by the court below is not sustainable and, hence, prays for an opportunity to Crl.A.No.1545/06 -:2:- prosecute the complaint. 3. I have heard the learned counsel for the appellant as well as the respondent. 4. From the facts indicated above, it appears that the cheque in question is for an amount of Rs.60,000/-. Since the order passed under section 256(1) Cr.P.C., there is no finding on merit regarding the allegation raised in the complaint. It is to be noted that the complaint was being prosecuted by the complainant earnestly. During the time of evidence, an affidavit was filed in lieu of chief examination and Exts.P1 to P5 were marked from the side of the complainant. It is true that the complainant was not made available for cross examination. On 22.4.2006, according to the complainant, he could not appear before the court below due to personal inconvenience. When the case was adjourned to 6.5.2006 and on that day also he could not appear before the court on medical ground and therefore by producing medical certificate, request was made to dispense with his presence. According to the appellant, the said prayer was allowed by the court below. This was not disputed by the respondent. But on 6.5.2006, the case was adjourned and posted after 20 days, i.e., on 26.5.2006. On that day also the complainant could not appear before the court as he was undergoing bed rest and a petition was filed to excuse his Crl.A.No.1545/06 -:3:- absence. According to the counsel for the appellant, the said petition was dismissed without assigning proper reasons. 5. Under the circumstances mentioned above, I am of the view that the complaint was vigilantly prosecuting by the complainant and there was no laches on his part in appearing before the court on 26.5.2006. It is also relevant to note that on 26.5.2006, a petition was filed for his personal exemption as he was undergoing bed rest. As the court below has already allowed the petition which was filed by the complainant by producing medical certificate on 6.5.2006, the court below ought to have allowed the petition filed by the complainant. Thus it can be seen that though the complainant has prosecuted the complaint effectively to a certain extent, there is no finding on merit. Therefore, it is just and proper to give an opportunity to the complainant to prosecute the complaint and to have a decision on merit. 6. At the same time, from the impugned order it can be seen that the complainant was repeatedly directed to appear in court and as he failed to comply with such direction, the order was passed in favour of the accused under section 256(1) Cr.P.C. Therefore, the complainant can be given an opportunity to prosecute the complaint only on terms. Crl.A.No.1545/06 -:4:- In the result, this appeal is allowed setting aside the judgment dated 26.5.2006 in STC No.485/2004 on the file of the Judicial First Class Magistrate, Ottapalam on condition that the appellant/petitioner remits a sum of Rs.1500/- before the court below, out of which, Rs.1000/- shall be given to the accused/respondent and Rs.500/- shall be paid to the State Exchequer. Accordingly, the parties are directed to appear before the court below on 30.4.2009, on which day the court below is directed to take up the complaint and to proceed with the same on satisfaction that the appellant/complainant has deposited a sum of Rs.1500/- as directed above and to proceed with the same and dispose of it on merit as expeditiously as possible. V.K.MOHANAN, JUDGE kvm/- Crl.A.No.1545/06 -:5:-