IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 CRL.A.No. 903 of 2010() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.221/2010 Dated 04/03/2010 ST.447/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... APPELLANT(S): COMPLAINANT ------------------------- M. KUMARASWAMY, AGED 41 YEARS, BUSINESS, RESIDING AT PERIA VEEDU, THAMARAKULAM, KOLLAM. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENT(S): --------------- 1. MINI, W/O. SREEKANTAN NAIR, AGED 39 YEARS, KIZHAKKEDATHU VEEDU, THEKKUMKARA, PULLICHIRA, MAYYANAD, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.VENUGOPAL M.R., PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.903 of 2010 ------------------------------- Dated this the 8th day of July, 2010. J U D G M E N T This appeal is preferred by the complainant in a prosecution for an offence punishable u/s.138 of Negotiable Instruments Act, as he is aggrieved by the order of acquittal recorded by the courts below u/s.256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that, the cheque in question cover an amount of Rs.4,50,000/- and after the appearance of the accused there were no sitting of the court on 18.8.2009 and on 16.10.2009 and the impugned order is passed on the 2nd effective posting of the case, after the appearance of the accused. The learned counsel by producing the order sheet in S.T.No.447/08 submitted that, there was no previous posting of the case for the evidence of the complainant and what stated in the impugned order is against the facts. 3. I have carefully considered the arguments advanced by the learned counsel for the appellant and also perused the order sheet of the court below. From a perusal of the order sheet, it Crl. APPEAL No.903 of 2010 2 appears that after the appearance of the accused and recording her plea, the case was adjourned. Thereafter, there was no effective posting of the case since on two subsequent posting dates, ie., on 18.8.2009 and on 16.10.2009. Thus the case was stood posted to 14.12.2009, on which date the complainant was absent and the case was adjourned to 14.1.2010 as a last chance. The learned counsel submitted that on 14.1.2010, though the complainant was absent because of the engagement of his brother's daughter, he was represented by his counsel. 4. Having regard to the facts and circumstances involved in the case, I am of the view that, as the cheque amount involved is Rs.4,50,000/- and the complainant was absent only because of his personal inconvenience and as he was properly represented, the learned Magistrate ought not have issued an order u/s.256(1) of Cr.P.C., rather he should have granted one more opportunity to the complainant to prosecute the matter on merit. However, even though there was some personal Crl. APPEAL No.903 of 2010 3 inconvenience to the complainant on 14.1.2010, he did not file any proof affidavit on any previous dates, which would show the laches on the part of the complainant. Therefore, I am of the view that the appellant/complainant can be granted one more opportunity to prosecute the matter on merit but only on terms. In the result, this criminal appeal is disposed of setting aside the order dated 14.1.2010, in S.T.No.447/08 of the Court of Chief Judicial Magistrate, Kollam, on condition that the complainant/appellant depositing a sum of Rs.3,000/- in the court below. Accordingly, the complainant/appellant is directed to appear before the trial court on 7.8.2010, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant deposits Rs.3,000/-, he is further directed to proceed with the complaint in accordance with procedure and law and dispose of the same on merit. Out of Rs.3,000/-, on the appearance of the accused Rs.1,500/- shall be paid to her and the remaining amount shall Crl. APPEAL No.903 of 2010 4 be paid to the State Exchequer. Criminal appeal is disposed of accordingly. V.K.MOHANAN, Judge. ami/