IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 CRL.A.No. 2390 of 2009() ------------------------ CC.447/2003 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT: PETITIONER/COMPLAINANT ------------------------------------ POABS ENVIROTECH PRIVATE LTD., VILAPPILSALA, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR, ABRAHAM JACOB, S/O. P.A.JACOB, RESIDING AT PANACHAYIL HOUSE, WEST OTHARA P.O., THIRUVALLA. BY ADV. SRI.N.JAMES KOSHY RESPONDENT(S): ACCUSED/STATE ---------------------------- 1. T.J.IYVAN, KANNATHUMODI, THURAVATHARA, KALLUMMAL P.O., MAVELIKKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 R2 BY PUBLIC PROSECUTOR SMT. LOWSY. A. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 2390 of 2009 ---------------------------------------- Dated the 10th day of November, 2011 JUDGMENT This appeal is preferred at the instance of the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act as it is aggrieved by the order dated 28.6.2005 of the court of the Chief Judicial Magistrate, Thiruvananthapuram in C.C.No. 447 of 2003, by which the learned Magistrate, acquitted the accused under section 256(1) Cr.P.C. 2. I have heard Sri N.James Koshy, the learned counsel appearing for the appellant and Sri Pirappancode V.S.Sudhir, the counsel appearing for the Ist respondent. 3. Counsel for the appellant strenuously submitted that the cheque in question covers an amount of Rs.2,02,240/- and the court has already taken cognizance upon the complaint preferred by the complainant connected with the dishonour of the above cheque but there is no decision on merit. It is also the submission of the learned counsel that as directed by the court below, the Managing Director of the complainant company appeared in person before the court below and also the complainant has appointed another power CRLA. 2390/09 2 of attorney holder, since the person who was appointed previously as the power of attorney of the complainant had quit the service of the complainant company. Thus according to the learned counsel, the complainant was prosecuting the matter very earnestly and effectively and therefore the finding of the court below is not correct and the appellant may be given one more opportunity to prosecute the matter on merit. On the other hand, the learned counsel for the Ist respondent submitted that the matter is highly belated one and the finding of the learned Magistrate with respect to the approach and conduct of the appellant is correct and there is no proper explanation for the non-representation of the appellant in the trial court. 4. I have carefully considered the submission made by the learned counsels for both the appellant as well as the Ist respondent. I have perused the order of the court below. 5. In this case, it is pertinent to note that as there was a delay of 1038 days , by oder dated 27.3.2009, this court has condoned the delay on condition of paying Rs.1000/- to the first respondent and the said condition is strictly complied with and thus the above appeal came up for further consideration. From the impugned CRLA. 2390/09 3 order, and in the light of the submission made by the learned counsel on the basis of the statement contained in the appeal memorandum, it appears that the complainant was prosecuting the matter earnestly and effectively and the complainant being a company, initially a person was appointed as the power of attorney holder of the company to prosecute the matter on behalf of the complainant and as the said power of attorney holder quit the service of the complainant company and joined in State service, another power of attorney holder was appointed. In the impugned order, the learned Magistrate has observed that, at the time of the roll call it was submitted that the complainant was present and it is further observed that after the roll call, when the case was taken for evidence, it is submitted from the side of the complainant that the power of attorney holder, who has been represented by the complainant was not the person present before the court, but another person as the new power of attorney holder was present. The above fact itself would sufficiently show that the finding of the learned Magistrate that the complainant is not interested in pursuing the matter is factually incorrect. However, as rightly pointed out by the counsel for the appellant, though the court has already taken CRLA. 2390/09 4 cognizance for the offence punishable under section 138 of the NI Act based upon a dishonoured cheque which covers an amount of Rs.1,02,240/-, there is no decision on merit. But there is some laches on the part of the complainant in properly prosecuting the matter, especially in filing a petition to accept the appointment of fresh power of attorney holder in time. Therefore, according to me, the petitioner can be given one more opportunity, only on terms and thereafter to have decision on merit. In the result, this appeal is disposed of setting aside the order dated 28.6.2005 in C.C.No.447 of 2003 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 the appellant/complainant is directed to appear before the trial court on 12.12.2011 on which date, the learned Magistrate is directed to restore the case on file and 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. The accused is also directed to appear before the CRLA. 2390/09 5 trial court on the above date, either in person or through the counsel. 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 of Rs.1000/- shall be deposited in the State Exchequer. As the case pertains to the year 2003, the learned Magistrate is directed to expedite the trial of the case and dispose of the same on merit as expeditiously as possible, at any rate, within 6 months from the date of restoration of the case, The parties are directed to cooperate with the trial so as to enable the Magistrate to dispose of the same expeditiously . V.K.MOHANAN, JUDGE kvm/- CRLA. 2390/09 6