IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 CRL.A.No. 2694 of 2009() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.1121/2009 Dated 18/12/2009 ST.327/2009 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................................................................................. APPELLANT(S): PETITIONER/COMPLAINANT -------------------------------------------------------------- K.V.SOMANATHAN, KURUVIKATTIL HOUSE, THODUPUZHA EAST P.O., THODUPUZHA. BY ADVS. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): ACCUSED ---------------------------------------- 1. THOMAS PHILIP, MATHASSERIL HOUSE, LAKKATTUR P.O., KOOROPADA, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.IYPE JOSEPH FOR R1 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.2694 of 2009 ------------------------------- Dated this the 17th day of June, 2010. J U D G M E N T This appeal is preferred at the instance of the complainant in a prosecution for the offence u/s.138 of Negotiable Instruments Act, challenging the order of acquittal recorded by the trial court u/s.256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that, the steps could not taken in the lower court because of the lapse on the part of the clerk of the counsel appearing for the complainant in the trial court. 3. Though the complaint was filed on 07.8.2009 and the case posted on 20.8.2009, so far the accused has not entered appearance. The reason stated by the learned Magistrate, for not securing the presence of the accused, is that there was a failure on the part of the complainant to take steps for issuing warrant against the accused. Going by the averments contained in the appeal memorandum and special leave Crl. APPEAL No.2694 of 2009 2 petition, it appears that the cheque in question covers an amount of Rs.45,000/-. Considering the facts and circumstances involved in the case, especially the fact that the accused has not appeared so far, I am of the view that one more opportunity can be given to the complainant to prosecute the matter on merit but subject to terms. In the result, criminal appeal is disposed of setting aside the order dated 19.11.2009 in S.T.357/09 of the Court of Chief Judicial Magistrate-Thodupuzha, on condition that the complainant depositing a sum of Rs.2,000/-. Accordingly the complainant is directed to appear before the court of Chief Judicial Magistrate-Thodupuzha on 17.7.2010, on which date the learned Magistrate is directed to restore the complaint on file on his satisfaction that, the complainant/ appellant deposits a sum of Rs.2,000/-, as directed above and to proceed further in accordance with procedure and law and dispose of the same on merit. On deposit of the amount of Rs.2,000/-, the same shall be paid to the State Exchequer. Crl. APPEAL No.2694 of 2009 3 Criminal appeal is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ami/ Case Number “S.T.357/09” occurring in line 2 of the last paragraph of the judgment in Crl.A.2694/2009 is corrected and substituted as “S.T.327/2009”, as per order dated 11.8.2010 of this Honourable Court in Crl.M.A.No.7460/2010 in Crl.A.2694/2009. Sd/- Registrar (Judicial)