IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 CRL.A.No. 47 of 2009() ---------------------- CRLP.1830/2008 Dated 01/01/2009 ST.1277/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,ETTUMANUR .................... APPELLANT(S): -------------- JACOB JOSEPH, KALLUVETTAMKUZHIYIL HOUSE, ETTUMANOOR. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.J.THOMAS, AREECHIRA HOUSE, ETTUMANOOR KIZHAKUM BHAGOM, CLAMATTAM PO., ETTUMANOOR. ADV. SRI.LIJI.J.VADAKEDOM FOR R2 R1 BY P.P. SMT. L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.47 of 2009 ---------------------------------------------- Dated, 23rd March, 2009. JUDGMENT This appeal is at the instance of the complainant in a prosecution for the ofence punishable under section 138 of the Negotiable Instruments Act. The learned counsel submitted that due to mistake committed by the Clerk of the counsel for the complainant in the trial court in noting down the date of posting of the case, neither the complainant nor his counsel appeared before the court below and, consequently, the impugned order was passed acquitting the accused under section 256(1) Cr.P.C. It is submitted that there is no fining on merit and therefore an opportunity be given to the complainant to prosecute the complaint. 2. I have heard the learned counsel appearing for the appellant and also the counsel for the 2nd respondent/accused. 3. From the records, it appears that the complainant approached the court of Chief Judicial Magistrate, Kottayam, by preferring a complaint for prosecuting the accused/respondent for an offence under section 138 of the N.I.Act, as the cheque in question issued by the accused for an amount of Rs.2 lakhs was dishonourd for want of sufficient funds. On the basis of the said CRL.A.47 OF 2009 -:2:- allegation, the sworn statement in C.C.89/2004 was taken in that court, but subsequently it was transferred to the Court of Judicial First Class Magistrate-I. Again the case was transferred to the JFCM-II, Ettumanoor. It is also discernible from the materials that when the case was transferred to the present court, there was a specific direction that the parties shall appear before the present court on 18.7.2008. According to the learned counsel for the appellant herein, the clerk of the counsel in the lower court was specifically directed to verify the register of the court and ascertain whether a new number was given or not and also to take down the proceedings and the posting date and thus the clerk of the counsel verified the records frequently, but according to the counsel, without assigning any new number, the matter was taken by calling the old number and hence, the clerk could not note down the proceedings, consequently, on the date of posting of the case neither the counsel nor the complainant could appear before the court below. 4. I am not satisfied with the explanation offered. It is an admitted fact that when the case was transferred from the court of Judicial First Class Magistrate-I, Ettumanoor to Judicial First Class Magistrate-II, Ettumanoor, there was specific direction to the effect that all the parties should appear before the latter court on CRL.A.47 OF 2009 -:3:- 18.7.2008. The proceedings sheet of the court below is not available. 5. In the light of the direction given by the former court, it is for the complainant to appear before the latter court on 18.7.2008. But on that day neither the complainant nor his counsel was present. On subsequent posting dates also there was no appearance. The above fact is clear from the order itself. Therefore, I find no reason to hold that the Magistrate is wrong in passing the order under section 256(1) Cr.P.C. However, it is a fact that the cheque in question involved is for an amount Rs.2 lakhs and there is no decision on merit. The lame excuse shown in the appeal memo cannot be acted upon since the same will affect the complainant. Therefore, I am of the view that one more opportunity can be given to the complainant to prosecute the complaint, but subject to terms. In the result, the appellant/complainant is directed to pay a sum of Rs.1000/- to the accused and a further sum of Rs.1000/- to be deposited in the court as costs. Accordingly, the order dated 8.8.2008 in S.T.1277/2007 is set aside and the parties are directed to appear before the court below on 23.4.2009 on which day the court is directed to take up the complaint, and on satisfaction that the complainant paid Rs.1000/- to the accused and deposited a sum of CRL.A.47 OF 2009 -:4:- Rs.1000/- in the court below which shall be paid to the State Exchequer, the court shall proceed with the complaint and to dispose of the same on merit. V.K.MOHANAN, JUDGE kvm/- CRL.A.47 OF 2009 -:5:- V.K.MOHANAN, J. No.... Judgment/Order Dated: