IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 CRL.A.No. 1238 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.619/2010 Dated 22/06/2010 CC.801/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/COMPLAINANT. ------------------------------------ BIJOY NELLOOR, S/O.NELLOR MATHEW, PERINGAZHA MARADY VILLAGE, REPRESENTED BY P/A.HOLDER ADV.NELLOR MATHEW. BY ADV. SRI.K.J.KURIACHAN RESPONDENT(S): RESPONDENT/ACCUSED. ---------------------------------- 1. PAUL DAVIS, MUNDACKAL HOUSE, NEAR ST.AUGUSTINE GIRLS HIGH SCHOOL, KOTHAMANGALAM-686 691. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.1238 of 2010 ------------------------------- Dated this the 2nd day of July, 2010. J U D G M E N T The complainant, in a prosecution for an offence punishable u/s.138 of Negotiable Instruments Act, represented by his power of attorney holder, is the appellant herein. In this appeal the complainant/appellant is challenging the order dated 18.2.2010 in C.C.No.801/05 of the Judicial First Class Magistrate Court-Muvattupuzha, by which the accused is acquitted u/s.256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that, as evidenced by Annexure(I) discharge summary issued from the Lisie Hospital, Kochi, would show that on the date of the impugned order, the power of attorney holder of the appellant was hospitalised and he was discharged only on 26.2.2010 for Sigmoid diverticuleten ē Peri cotic abscess. The learned counsel further submitted that, as the power of attorney holder was hospitalised, he was not able to give appropriate instruction to his counsel appearing in the court below and it was under the Crl. APPEAL No.1238 of 2010 2 above circumstances the learned Magistrate issued the impugned order. It is the further submission of the learned counsel that the power of attorney holder of the complainant now recovered from his ailment and therefore an opportunity may be given to prosecute the matter on merit. 3. I have considered the arguments advanced by the learned counsel for the appellant and also perused the impugned order. The cheque in question covers an amount of Rs.1 lakh and initially the case was pending in the Judicial First Class Magistrate Court-Kothamangalam, from where it was transferred to the present court, as the accused is an advocate practicing in the court at Kothamangalam. It is also discernible from the order that, once the accused was acquitted u/s.256(1) of Cr.P.C. and the said order was set aside as per the order of this court. Thus while the matter was pending before the court below, the present order is issued. 4. The learned counsel for the appellant submitted that, the power of attorney holder of the complainant was a leading Crl. APPEAL No.1238 of 2010 3 lawyer at Muvattupuzha, though he is not practicing at present, as such because of his ailment. It is also the submission of the learned counsel that because of his ailment, the power of attorney holder could not appear before the court below. But I am not inclined to accept such a submission, especially when the power of attorney holder was a leading lawyer, who was aware of the proceedings of the court of law. According to me, it was incumbent upon the power of attorney holder of the complainant to make arrangement to represent the case properly by giving appropriate instruction to the counsel. But when the case was called on 18.2.2010, it was represented that there was no instruction. It was under the above circumstances the court issued the order. Therefore, I find no illegality or irregularity with the order impugned. 5. However it is relevant to note that the cheque in question cover for an amount of Rs.1lakh and Annexure (I) document would show that, the power of attorney holder of the complainant was hospitalised on the very same day on which Crl. APPEAL No.1238 of 2010 4 the impugned order was passed. It is also relevant to note that, after the disposal of C.M.P.1943/09, which was filed for transfer of the case, the case was posted for recording the evidence of the complainant on 9.2.2010, on which date though the complainant was absent he was represented and prayed for an adjournment on medical ground. The said prayer was allowed and accordingly the case was adjourned to 16.2.2010. On that date also the complainant was absent and it was represented before the courts below that the complainant has undergone by- pass surgery and prayed for an adjournment. Since no medical certificate was produced, the court has adjourned the case to 18.2.2010, with a specific direction of appearance of the complainant or to produce the medical records. But on that date there was no representation. From the above datas it appears that, before the date of the impugned order there was only two postings, that was on 9.2.2010 and on 16.2.2010 and on all those days, the power of attorney holder of the complainant was absent because of his ailment, which would further clear from Crl. APPEAL No.1238 of 2010 5 Annexure (I). But there was a default on the part of the complainant or his power of attorney holder, to produce Annexure (1) document before the court below. Considering the facts and circumstances involved in the case, I am of the view that the complainant can be granted one more opportunity to prosecute the matter on merit but subject to terms. In the result, the order dated 18.2.2010 in C.C.801/05 of the Court of Judicial First Class Magistrate-Muvattupuzha, is set aside on condition that the complainant/appellant depositing a sum of Rs.2,500/-. Accordingly the complainant is directed to appear before the trial court on 2.8.2010, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant has paid the amount as directed above, the learned Magistrate is further directed to proceed with the complaint in accordance with law and procedure and to dispose the same on merit. On depositing the above amount, a sum of Rs.1,500/- shall be paid to the accused on his appearance and the remaining amount Crl. APPEAL No.1238 of 2010 6 shall be paid to the State Exchequer. As the case pertained to the year 2005, the parties are directed to co-operate with the trial and the learned Magistrate is directed to expedite the trial of the case and dispose of the same, at any rate within a period of 6 months from the date of receipt of the copy of this order. V.K.MOHANAN, Judge. ami/