IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 CRL.A.No. 1374 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.636/2010 Dated 02/07/2010 ST.1061/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------ A.LEELA, AGED 58 YEARS, W/O.PURUSHOTHAMAN, PUTHUVAL PUTHAN VEEDU,NEAR S.N.COLLEGE,KOLLAM. BY ADVS. SRI.V.V.RAJA, SRI.M.T.SURESHKUMAR. RESPONDENT(S): ACCUSED AND STATE: ------------------------------------------------------------- 1. N.SIVADASAN,POSTMAN, MAIN POST OFFICE, CHINNAKKADA,KOLLAM, PIN - 680 001. 2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 1374 of 2010 ---------------------------------------- Dated the 20th Day of July 2010 JUDGMENT The complainant, who is a lady in a prosecution for the offence under section 138 of the Negotiable Instruments Act, is the appellant as she is aggrieved by the order of acquittal recorded by the trail court under section 256(1) Cr.P.C. 2. The learned counsel for the appellant submitted that there was no specific posting for evidence on the date of the impugned order and the complainant was prosecuting the complaint vigilantly. The case was originally posted to 27.8.2008 and was adjourned to 7.10.2008 on which day she was directed to produce the original of the cheque and she produced the same on the next posting date, i.e. on 22.1.2009. Thereafter the case was being adjourned not for the fault of the complainant. 3. I have gone through the impugned order. From the impugned order, it is not discernible as to whether CRL.A.1374/10 -:2:- before the impugned order, the complainant was given opportunities for adducing evidence and whether she was negligent in adducing evidence etc. In a prosecution for the offence under section 138 of the NI Act, the complainant, if very much interested in prosecuting the matter effectively and cooperating with the proceedings of the court below, is expected to present in court either in person or through counsel, if any. From the impugned order, it appears that even though the complainant was absent, no application was field and she was not represented by her counsel, if any. Therefore, the order of the learned Magistrate cannot be treated as an illegal or irregular. However, it appears that the cheque in question covers an amount of Rs. 85,000/- and on the previous date of posting, the complainant was either present or represented. Therefore, according to me, the learned Magistrate ought to have granted one more opportunity to the complainant to prosecute the matter on merit. Hence, according to me, while granting time to the complainant to prosecute the matter, some cost can be ordered, which will CRL.A.1374/10 -:3:- be sufficient to meet the ends of justice. In the result, this appeal is disposed of setting aside the order dated 10.11.2009 of the court of CJM, Kollam, on condition that the appellant/complainant deposits a sum of Rs.2000/- in the court below. Accordingly, the complainant is directed to appear before the trial court on 30/8/2010 on which date, the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant has deposited the amount of Rs.2000/-, he is further directed to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. On deposit of the above amount, a sum of Rs.1000/- shall be paid to the accused on his appearance and the remaining amount shall be deposited into the State Exchequer. V.K.MOHANAN, JUDGE kvm/- CRL.A.1374/10 -:4:- O.P.No. JUDGMENT Dated:..