IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 CRL.A.No. 1558 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.753/2011 Dated 18/08/2011 CC.1261/2007 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... APPELLANT(S): -------------- M/S.MUTHOOT LEASING AND FINANCE LTD. NOW MUTHOOT VEHICLE AND ASSET FINANCE LTD, HAVING ITS REGISTERED OFFICE AT MUTHOOT CHAMBERS OPP.TO SARITHA THEATRE COMPLEX,BANERJI ROAD,EKM KOCHI-18 REP BY ITS AUTHORISED MRS,.BABYSUJATHA,D/O.MR.M.R VALSAN,THRIPUNITHURA PIN 682 038. BY ADV. SRI.K.J.KURIACHAN RESPONDENT(S): --------------- 1. MR.SAJU JACOB, CHAKKALACKAL HOUSE INDIRA NAGAR,ERNAKULAM, COCHIN-17 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM ADV. SRI.PMM.NAJEEB KHAN FOR R1 PUBLIC PROSECUTOR SMT.LOWSY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. Appeal No.1558 of 2011 -------------------------------------------- Dated this the 21st day of October, 2011 JUDGMENT This is an appeal preferred at the instance of the complainant in a prosecution for the offence u/s. 138 of the NI Act, as the complainant is aggrieved by the judgment dated 22.9.2010 in CC No.1261/2007 of the court of Judicial First Class Magistrate-III, Kochi, by which the learned Magistrate acquitted the accused u/s.256(1) of Cr.P.C. 2. Heard the counsel for the appellant and the respondent. 3. From the impugned order, it appears that the complainant and the counsel were absent on the date of the impugned order and it is further seen from the order that they were continuously absent. But the learned counsel for the appellant submitted that the complainant has already filed the proof affidavit as early as on 18.12.2009 and the counsel admitted that, the complainant could not appear before the court on 14.9.2010, the date on which the case was posted for evidence. According to the learned counsel, A diary shows that on 14.9.2010, the case was adjourned to 22.11.2010. But the Crl. Appeal No.1558 of 2011 2 case was called on 22.9.2010 and pass the impugned order. Though, the counsel made such a submission, no document is produced to substantiate said submission. However, it appears that the cheque in question covers an amount of Rs.9,65,000/- and the court has already taken cognizance for the offence u/s.138 of the NI Act connected with the above cheque. If that being so, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter and to have a decision on merit. But such an opportunity can be given to the complainant only on terms, since from the order impugned, it appears that there were laches on the part of the complainant and in co-operating with the court to proceed with the trial of the case. In the result, this appeal is disposed of setting aside the judgment dated 22.9.2010 in CC No.1261/2007 of the court of Judicial First Class Magistrate-III, Kochi, on condition the appellant/complainant depositing a sum of Rs.2,000/- within one month from today, in the trial court. Accordingly, the complainant/appellant is directed to appear before the trial court on 21.11.2011, on which date, the learned Magistrate is directed to restore the case on file and on her satisfaction, that the Crl. Appeal No.1558 of 2011 3 complainant/appellant depositing the above amount, the learned Magistrate is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose it on merits. On appearance of the accused, a sum of Rs.1,000/- shall be paid to him out of the above amount and the remaining amount shall be deposited in the State Exchequer. As the case pertains to the year 2007, the learned Magistrate is directed to dispose the case as expeditiously as possible. V.K.MOHANAN, JUDGE. pm/