IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 CRL.A.No. 1884 of 2011() ------------------------ ST.864/2008 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT: PETITIONER/COMPLAINANT: ------------------------------------- HOUSING DEVELOPMENT FINANCE CORPORATION, REPRESENTED BY ITS MANAGER OPERATIONS, SRI.SREEKUMARAN NAIR, HDFC HOUSE, VAZHUTHACAUD, THIRUVANANTHAPURAM, MANAGER HDFC BANK, TRIVANDRUM. BY ADV. SRI.P.V.ANIL SMT.R.RAMYA RESPONDENTS: ACCUSED & STATE: ------------------------------- 1. RACHEL K.M., CASHIER, DENA BANK, RAJADHANI BUILDING, FORT P.O., THIRUVANANTHAPURAM-23. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BIJU .C. ABRAHAM FOR R1 R2 BY PUBLIC PROSECUTOR SMT. LOWSY THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 1884 of 2011 ---------------------------------------- Dated the 3rd day of November, 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 29.9.2009 of the court of the Chief Judicial Magistrate, Thiruvananthapuram in S.T.No.864 of 2008, by which the learned Magistrate, acquitted the accused under section 256(1) Cr.P.C. 2. I have heard Sri Anil P.V., the learned counsel appearing for the appellant and Sri Biju C. Abraham, the counsel appearing for the Ist respondent. 3. Counsel for the appellant submitted that the cheque in question covers an amount of Rs.1,50,000/-. It is the further submission of the counsel that an opportunity may be given to the complainant to prosecute the matter on merit. On the other hand, the counsel for the Ist respondent strenuously submitted that no reason is assigned by the appellant for its CRLA. 1884/11 2 absence in the trial court on the date of the impugned order as well as during the previous posting dates. 4. I have carefully considered the submission made by the counsel for the appellant as well as the Ist respondent. It is beyond dispute that the cheque in question covers an amount of Rs.1,50,000/- and the court has already taken cognizance for the offence under section 138 of the NI Act on the basis of the said cheque. It is true that though the accused was present regularly, the complainant/institution was absent not only on the date of the impugned order but also on the last posting date. However, considering the fact that the cheque in question covers an amount of Rs.1,50,000/- and the fact that there is no decision on merit in spite of the fact that cognizance was taken, I am of the view that one more opportunity can be given to the complainant to prosecute the matter and to have a decision on merit. In the absence of any convincing explanation for the absence of the complainant or its counsel in the trial court, I am of the view that such an opportunity can be CRLA. 1884/11 3 given only on terms. In the result, this appeal is disposed of setting aside the order dated 29.9.2009 in S.T.No.No.864 of 2008 of the Court of Chief Judicial Magistrate, Thiruvananthapuram, on condition that the appellant/complainant deposits a sum of Rs.2000/-(Rs.two thousand only) in the trial court, within one month from today. Accordingly, the learned Magistrate is directed to restore the case on file on 7.12.2011 on which date, both the appellant/complainant as well as the accused are directed to appear before the trial court either in person or through their counsel. On satisfaction of the learned Magistrate that the complainant deposits the amount as directed above, the learned Magistrate is further directed to proceed with the case in accordance with the procedure and law and dispose of the same on merit. On deposit of Rs.2000/-, a sum of Rs.1000/- (Rs.one thousand only) shall be paid to the accused on his appearance and the remaining amount shall be deposited in the State Exchequer. As the case pertains to the year CRLA. 1884/11 4 2008, the learned Magistrate is directed to expedite the trial and dispose of the case as early as possible. V.K.MOHANAN, JUDGE kvm/- CRLA. 1884/11 5