IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 CRL.A.No. 1316 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.691/2010 Dated 06/07/2010 CC.191/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHENGANNUR .................... APPELLANT(S): COMPLAINANT ------------------------- VENUGOPAL, S/O.GOVINDAN THAMPY, KAIMATTIL VEEDU, ORIPRAM, CHENNITHALA. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DONEES MOTORS PVT.LTD., PARAVOOR, AUTORISED SIGNATORY JOHN JOB, MANAPARAMBIL VEEDU, PARAVOOR VADAKKU, ALAPPUZHA. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. Appeal No.1316 of 2010 ------------------------------- Dated this the 21st day of July, 2010. J U D G M E N T The complainant in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the appellant herein, as he is aggrieved by the order of acquittal recorded by the trial court u/s.256 of Cr.P.C. 2. The learned counsel for the appellant submitted that, when the case was called up for evidence, the counsel for the complainant could not appear as he had already undergone a major cardiac operation and the said fact could not brought to the notice of the court in time. It is also submitted by the learned counsel that, the impugned order is issued by the Judicial First Class Magistrate Court-II, Chengannur, and the counsel appearing for the complainant was regularly practicing at Mavelikkara. But from the impugned order it appears that, the case was being adjourned from 5.12.2009 onwards for the evidence of the complainant and several postings were granted Crl. Appeal No.1316 of 2010 2 in favour of the complainant to adduce his evidence. Therefore, the submission made by the learned counsel to challenge the order of the learned Magistrate that, only because of the health condition of the counsel appearing for the complainant in the trial court, caused the non-appearance for the complainant is not tenable. However the cheque in question covers an amount of Rs.48,000/-. From the submission of the learned counsel it appears that, the complainant is no way responsible for his absence and not adducing evidence and the sole reason resulted for the impugned order is the absence of the counsel appearing for the complainant. The failure on the part of the counsel to appear and prosecute the matter shall not be shouldered on his party and deny justice to him. It is also relevant to note that though the case pertinent to the year 2009, there is nothing on record to show that the complainant was diligent in prosecuting the complaint properly. Now there is an order in favour of the accused acquitting him u/s.256 of Cr.P.C., even though the same is not on merit. Having regard to the facts and circumstances involved in the case, I am of the view that the appellant can be Crl. Appeal No.1316 of 2010 3 granted one more opportunity to prosecute the complaint on merit but subject to terms. In the result, this appeal is disposed of setting aside an order dated 3.5.2010 in C.C.No.191/09 of the Court of Judicial First Class Magistrate-II, Chengannur, on condition that the appellant/ complainant depositing a sum of Rs.1,500/- in the court below. Accordingly, the appellant/complainant is directed to appear before the trial court on 30.8.2010, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant deposit the amount and he is further directed to proceed with the complaint in accordance with procedure and law and dispose of the same on merit. On the appearance of the accused, out of Rs.1,500/-, a sum of Rs.1,000/- shall be paid to him and the remaining amount shall be paid to the State Exchequer. V.K.MOHANAN, Judge. ami/