IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 10TH NOVEMBER, 2011 / 19TH KARTHIKA, 1933 CRL.A.No. 1795 of 2011 --------------------------------- (LEAVE GRANTED BY ORDER IN CRLP.843/2011 Dated 20/09/2011 CC.908/2007 of JUDL.MAGISTRATE OF FIRST CLASS, KARUNAGAPPALLY) .................... APPELLANT(S)/COMPLAINANT: -------------------------------------------- SADASIVAN, AGED 72 YEARS, S/O.KARUTHAYYAPPAN, SARIKA MANDIRAM, KULANGARABHAGAM MURI, CHAVARA P.O.,KOLLAM BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENTS(S)/STATE & ACCUSED: ------------------------------------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 2. NISHA, PANANPLAVIL HOUSE, PUTHUKKADU P.O.,CHAVARA,KOLLAM BY ADV. SRI. K.SHAJ FOR R2 BY ADV.SRI.SAJJU.S FOR R2 BY PUBLIC PROSECUTOR FOR R1 SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1795 of 2011 ---------------------------------------- Dated this the 10th day of November, 2011 J U D G M E N T The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short '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) of the Code of Criminal Procedure. 2. Counsel for the appellant submitted that the complainant is an aged man who was regularly appearing before the court below, but the case was being adjourned since the accused has absconded. It is also the submission of the learned counsel that the appellant has also filed an application for appointment of Power of Attorney on 3.6.2009 and thereafter, the case was being adjourned with the above application. According to the learned counsel, there was no wilful laches on the part of the appellant in appearing before the court below. Therefore, the counsel submitted that one more opportunity CRL.A.NO.1795 of 2011 :-2-: may be given to the complainant to prosecute the matter on merit. 3. Having regard to the facts and circumstances involved in the case, especially when the cheque in question covers an amount of `.50,000/- and the complainant, who is an aged man, was regularly appearing before the court below and at the time of the impugned order, his application for appointment of Power of Attorney was pending, I am of the view that the order impugned can be set aside and the appellant/complainant can be granted one more opportunity to prosecute the matter on merit. In the result, this appeal is disposed of setting aside the order dated 30.4.2010 in C.C.No.908 of 2007 on the file of the Judicial First Class Magistrate Court, Karunagappally. Accordingly, the appellant/complainant is directed to appear before the trial court on 12.12.2011 either in person or through his agent on which date, the learned Magistrate is directed to restore the complaint on file and proceed with the same in accordance with the procedure and law and CRL.A.NO.1795 of 2011 :-3-: dispose of the same on merit. The learned Magistrate is directed to expedite the trial of the case since the Calendar Case pertains to the year 2007. This Criminal Appeal is disposed of as above. V.K.Mohanan, Judge. MBS/ CRL.A.NO.1795 of 2011 :-4-: V.K.MOHANAN, J. CRL.A.No. 796 OF 2003 JUDGMENT Dated:4.10.2011 CRL.A.NO.1795 of 2011 :-5-: