IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 CRL.A.No. 102 of 2003() ----------------------- CC.780/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... APPELLANT(S): COMPLAINANT: -------------------------- KARTHIKAYAN, AGED 43 YEARS, S/O. VELU, KALEZHUTHU (H) UDAYAMPEROOR P.O., ERNAKULAM DISTRICT. BY ADV. SRI.M.S.MANIKANDAN RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. K.K. NARAYANAN, KOCHUPURACKAL HOUSE, NEAR P.K.M. CLUB, UDAYAMPAROOR P.O., ERNAKULAM DISTRICT, PIN-682 307. 2. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.T.JOSE FOR R1 R2 BY P.P. SRI C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.102 of 2003 ---------------------------------------------- Dated, 27th March, 2009. JUDGMENT This is an appeal at the instance of the 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 trial court under section 256(1) of Cr.P.C. 2. The court took cognizance upon the complaint preferred by the appellant and instituted C.C.No.780/99 wherein the allegation is that the cheque issued by the accused for an amount of Rs.40,000/- was dishonoured for the reason of insufficiency of funds in the account of the accused. The learned Counsel submitted that taking cognizance upon the complaint, the complainant was vigilantly prosecuting the complaint and he was physically present on all required occasions. On 26.10.2002, when the case was called, neither the complainant nor his Counsel could appear before the court below for the reason that there a mistake was crept in while noting down the date. It is submitted that due to the mistake so happened, the complainant could not appear before the court and he lost in the prosecution. It is pointed out that there is no decision on merit even though the cheque in question was for an amount of CRL.A.102/2003 -:2:- Rs.40,000/-. 3. I have perused the impugned order which is in a printed form. The only reason stated is that the complainant not being present either in person or by pleader, the accused is acquitted under section 256(1) Cr.P.C. The learned counsel submitted that the case was posted as usually for evidence and there was no positive direction for adducing evidence on that day. However, the Counsel submitted that the non appearance of the complainant or his counsel was due to the mistake crept in while noting down the posting date and there is no willful laches or negligence on the part of the complainant or his counsel in appearing before the court below. 4. As the complainant was not present on the date of the impugned order and he was not represented by the counsel, I am not in a position to come into the conclusion that the order of the court below is illegal or incorrect. But at the same time, it is pointed out that the absence was not willful. It is also a fact that though the prosecution was based upon the dishonour of the cheque for an amount of Rs.40,000/-, there is no decision on merit. Therefore, I am of the view that one more opportunity can be given to the complainant to prosecute the complaint and to have a decision on merit, but subject to terms. In the result, the order dated 26.10.2002 of the court of Additional CRL.A.102/2003 -:3:- Chief Judicial Magistrate, Ernakulam in C.C.No.780/99 is set aside on condition that the appellant deposits a sum of Rs.1500/- in the court below. Accordingly, the complainant is directed to appear before the court below on 27.4.2009 on which day the court below is directed to take up the complaint, and on satisfaction that the complainant deposits a sum of Rs.1500/-, out of which , Rs.500/- shall be given to the accused and Rs.1000/- to be paid to the State Exchequer, the court shall proceed with the complaint and dispose of the same on merit. Since the case is pertained to the year 1999, there will be a direction that the same shall be disposed of as expeditiously as possible. V.K.MOHANAN, JUDGE kvm/- CRL.A.102/2003 -:4:-