IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 CRL.A.No. 1072 of 2010() ------------------------ CRLP.447/2010 Dated 20/05/2010 OF THIS COURT. ST.63/2009 of THE JUDLFIRST CLASS MAGISTRATE COURT-V, KOTTAYAM .................... APPELLANT(S): COMPLAINANT ------------------------- T.K.A.JOSEPH, AGED 85 YEARS, VADAKKETHOTTATHIL, CHINGAVANAM KARA, NATTAKOM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. SWAPNA BAJI, W/O.BAJI, PERUMTHURUTHIL VEEDU, KAKKOOR KARA, NATTAKOM VILLAGE, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI C.M. NAZAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 1072 of 2010 ---------------------------------------- Dated the 7th Day of July, 2010 JUDGMENT The complainant in a prosecution for the offence under section 138 of the N.I.Act is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under section 256(1) Cr.P.C. 2. The learned counsel for the appellant submitted that the cheque in question covers an amount of Rs.4,03,750/- and as the complainant is an aged man, he had already appointed a power of attorney holder and the court below by order dated 11.1.2010 in CMP No.2/2010 allowed the petition. Thus, according to the learned counsel, on the date of the impugned order, though the complainant was not personally present, he was represented by the power of attorney holder who was ready to adduce evidence. 3. Going by the impugned order it is not discernible whether the power of attorney holder of the complainant was CRL.A.No.1072/10 -:2:- present and he was ready to adduce evidence. While the court has already allowed CMP 2/2010 allowing the complainant to appoint a power of attorney holder, the court should have stated in the impugned order whether the complainant or he was represented by the power of attorney holder or at least his counsel. There is no such details. As the Cheque in question covers an amount of Rs.4,03,750/- and the complainant is at the age of 85 years, who is represented by the power of attorney holder, as allowed by the court by order in CMP 2/2010, I am of the view that it was incumbent upon the court below to proceed with the trial and to record the evidence of the complainant by examining the power of attorney holder if he was present. But it is not stated about the presence of the power of attorney holder of the complainant. Under the above circumstances, I am of the view that one more opportunity can be given to the complainant to prosecute the complaint on merit. But subject to terms. In the result, this appeal is disposed of setting aside the CRL.A.No.1072/10 -:3:- order dated 6.3.2010 in S.T.No.63/2009 of the court of Judicial first Class Magistrate-V, Kottayam on condition that the appellant/complainant deposits a sum of Rs,2000/- in the trial court. Accordingly, the appellant/complainant is directed to appear before the trial court on 7th August, 2010 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant deposits the amount, proceed further in accordance with the procedure and law and dispose of the same on merit. On deposit of the the amount of Rs.2000/-, a sum of Rs.1000/- shall be paid to the accused on her appearance and the remaining amount shall be deposited in to the State Exchequer. This Crl.Appeal is disposed of Accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.A.No.1072/10 -:4:- kvm/- O.P.No. JUDGMENT Dated:..