IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 CRL.A.No. 1267 of 2009() ------------------------ ST.2460/2008 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... APPELLANTS: PETITIONERS/(LEGAL HEIRS OF THE DECEASED COMPLAINA ---------------------------------------------------------------- 1. JANU.P.P., 62 YEARS, MOTHER OF THE DECEASED COMPLAINANT, PUTHENPURAHIL HOUSE, KAKKATTIL PO, VATAKARA. 2. SHEEJA M.N. 32 YEARS, W/O.DECEASED COMPLAINANT, PUTHENPURAYIL HOUSE, KAKKATTIL PO, VATAKARA. 3. DAUGHTER ANAVADAYA.S.ANIL, PUTHENPURAYIL HOUSE,KAKKATTIL PO, VATAKARA. 4. ANAYA.S.ANIL, PUTHENPURAYIL HOUSE, KAKKATTIL PO, VATAKARA(APPELLANTS 3 & 4 ARE MINORS REP.BY MOTHER 2ND APPELLANT) BY ADV. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL RESPONDENTS: ACCUSED: ----------------------- 1. KIRAN BABU, S/O. APPU, BAPPAYIL PALACE HOTEL & COOL BAR, PAVANGAD JUNCTION, KOZHIKODE. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No.1267 of 2009 ---------------------------------------- Dated the 2nd day of August, 2011 JUDGMENT This Crl.Appeal is preferred against the order dated 16.2.2009 in S.T.No.2460 of 2008 of the court of Judicial First Class Magistrate, Vatakara by which the learned Magistrate acquitted the accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act. 2. The original complainant was one P.P.Anilkumar who expired on 28.7.2008 when the above case was pending before the trial court. From the impugned order it appears that, when the case was posted on 15.12.2008, the counsel for the complainant reported the death of the complainant before the court below and requested time to take further steps and accordingly the case was adjourned to 16.2.2009 on which date, the learned Magistrate passed the impugned order stating that no steps have been taken to proceed with the case by any legal representative of the deceased complainant and accordingly the accused was acquitted under section 256(2) Cr.P.C. Against the above order, the appellants herein preferred Crl.L.P. No.482/2009 wherein the prayer is to set aside Crl.A.No.1267 of 2009 -2- the order of acquittal passed by the Judicial First Class Magistrate, Vatakara in S.T.No.2460/2008 under section 256(2) Cr.P.C to enable the appellants to proceed with the case further. When the above leave petition came up for consideration, a learned Judge of this court after hearing the matter, by order dated 29.6.2009 granted the leave. Accordingly, the present appeal is preferred. Thus it is crystal clear that the learned Judge of this court who granted the leave was fully satisfied with the legal necessity to grant leave so as to enable the petitioners to proceed with the complaint preferred by the deceased complainant. 3. From the facts available from the materials including the impugned order, it appears that the court below has already taken cognizance for the offence punishable under section 138 of the N.I.Act on the basis of the complaint preferred by the deceased complainant in which the cheque covers an amount of Rs.4 lakhs. It is also discernible from the impugned order that the accused had once appeared before the court below and when the charge was read over and explained to the accused, the accused pleaded not guilty and after recording the plea of Crl.A.No.1267 of 2009 -3- the accused, the case was posted for evidence on 15.12.2008 and it is in the meanwhile the original complainant expired , i.e. On 28.7.2008. So, when the trial court passed the impugned order, the court below was aware of the fact that the complainant was no more. But it is equally important to note that there is lapse from the part of the present appellants in taking steps within the time granted by the court below and as there was failure in taking appropriate steps, the court has no other go but to pass orders under section 256(2) Cr.P.C and accordingly, the accused was acquitted. But it is relevant to note that even though a complaint was duly filed and cognizance was taken for the offence under section 138 of the NI Act, in which the amount involved is Rs.4 lakhs, there is no decision on merit and the complainant is no more and therefore it is only just and proper to grant an opportunity in favour of the appellants to prosecute the complaint and to have a decision in accordance with the merit . In the result, this appeal is allowed setting aside the order dated 16.2.2009 of the court of Judicial First Class Magistrate,Vatakara. Accordingly, the learned Magistrate is Crl.A.No.1267 of 2009 -4- directed to restore the complaint on file on 2.9.2011, on which date the appellants are directed to appear before the trial court and cooperate with the court below to proceed with the complaint and to dispose of the same on merit, and the learned Magistrate is further directed to dispose of the complaint in S.T.No.2460 of 2008 in accordance with the procedure and law. V.K. MOHANAN J udge kvm/- Crl.A.No.1267 of 2009 -5-