IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 CRL.A.No. 254 of 2010() ----------------------- ST.79/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS - II, ETTUMANUR .................... APPELLANT: PETITIONER/COMPLAINANT: ------------------------------------- P.S.SUNIL, S/O.SUKUMARAN, PONNATTIL HOUSE, VAYALA P.O., KALAPLAMATTAM. BY ADV. SRI.A.K.HARIDAS RESPONDENTS: ACCUSED & STATE: ------------------------------- 1. BALAKRISHNA PILLAI, ONATTU HOUSE, MEDICAL COLLEGE P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.M.RAMAN KARTHA FOR R1 R2 BY P.P. SRI C.S.HRITHIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No.254 of 2010 ---------------------------------------- Dated the 18th Day of July, 2011 JUGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instrument Act is the appellant as he is aggrieved by the order of acquittal recorded by the trial Court in favour of the accused under section 256 Cr.P.C. 2. The learned counsel for the appellant submitted that the complainant was under the impression that he was exempted from personal appearance as the accused had already been exempted. It is also the submission of the learned counsel that during the month of October 2009, there were three frequent postings and therefore the complainant was not in a position to appear before the trial court. According to me, the above grounds are not sufficient to interfere with the order impugned. However, from Annexure-I, and from the impugned order and also from the facts stated in the appeal memorandum, it appears Crl.A.No.254/10 -:2:- that the cheque in question covers an amount of Rs.2 lakhs and the court has already taken cognizance for the offence under section 138 of the NI Act but there is no finding on merit. True, the court was constrained to pass such an order because of the non cooperation of the complainant. From Annexure 1 proceedings of the court, it can be seen that though several occasions were granted to the complainant to adduce evidence, he did not avail the same and therefore, the negligence on the part of the complainant is borne out from the record itself. But according to me, as the court has already taken cognizance and, especially, when the cheque in question covers an amount of Rs.2 lakhs, I am of the view that the appellant/complainant can be granted one more opportunity to prosecute the matter and to have a decision on on merit, but subject to terms. It is also relevant to note that this court by order dated 2.2.2010 in Crl.L.P.No.101.2010, special leave was granted. In the result, this appeal is disposed of setting aside the order dated 10.11.2009 in ST No.79 of 2009 of the court of Crl.A.No.254/10 -:3:- Judicial First Class Magistrate-II, Ettumanoor on condition that the petitioner deposits a sum of rs.2000/- in the trial court . Accordingly, the appellant/complainant is directed to appear before the trial court on 18th August, 2011 on which date, the learned Magistrate is directed to restore the complaint on file and the learned Magistrate is further directed to proceed with the trial on the above case on his satisfaction that the petitioner deposits the amount ordered above and to dispose of the same in accordance with the procedure and law. On deposit of Rs.2000/-, a sum of Rs.1000/- shall be deposited in the State ex chequer and the remaining amount of Rs.1000/- shall be pad to the accused on his appearance. V.K.MOHANAN, JUDGE kvm/- Crl.A.No.254/10 -:4:-