IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 CRL. A.No. 2196 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.1010/2010 Dated 14/10/2010 ST.229/2009 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... APPELLANT : PETITIONER/COMPLAINANT ------------------------------------ D.RAMANI,PUTRHENVILA VEEDU, PUNTHALATAZHAM, KILIKALLOR POST,KOLLAM-4. BY ADV. SRI.SUNNY ZACHARIA RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. V.THOMAS , ASST.SALESMAN, MAVELI STORE, THONIPUZHA PO, THIRUVALLA, PIN 689 101. 2. STATE OF KERALA, THROUGH THE GOVT.PLEADER,HIGH COURT OF KERALA. ADV. SRI.K.S.MANU (PUNUKKONNOOR) FOR R1 SRI.P.SREEKUMAR FOR R1 PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: amk. V.K.MOHANAN,J ------------------------------ Crl.A.No.2196 of 2010 ----------------------------------------- Dated this the 20th day of September, 2011 JUDGMENT The complainant in a prosecution for the offence u/s.138 of the NI Act is the appellant, as she is aggrieved by the order dated 7.7.2010 of the court of Judicial First Class Magistrate -III, Kollam in ST No.229/2009 by which the learned Magistrate acquitted the accused u/s.256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that due to a mistake committed by the clerk of the counsel for the complainant in the trial court, the date of the posting is noted as 9.7.2010 instead of 7.7.2010. The counsel for the appellant submitted that the cheque in question covers an amount of Rs.45,000/- and therefore, an opportunity may be given to the petitioner to prosecute the matter on merit. 3. The counsel for the respondent submitted that the reason stated by the counsel for the appellant is not supported by any material and therefore, the appeal is liable to be dismissed. 4. It is relevant to note that by order dated 14.10.2010 in Crl.L.P.No.1010/2010, this Court has granted leave, to file the Crl.A.No.2196 of 2010 2 present appeal. 5. It is pertinent to note that the cheque in question covers an amount of Rs.45,000/- and though the court has taken cognizance, there is no decision on merit. As right by pointed out by the counsel for the respondent, there is no material to show that the absence of the complainant was due to the mistake committed by the clerk of the counsel for the complainant in the trial court . However, it can be seen that though cognizance was taken for the offence u/s.138 of the NI Act, there is no decision on merit. But there was negligence on the part of the complainant in appearing before the court below on 7.7.2010, though there was specific direction for her presence on that day. Having regard to the facts and circumstances involved in this case, 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 the same can be ordered only on terms. In the result, this appeal is disposed of setting aside the order dated 7.7.2010 in ST No.229/2009 of the court of Judicial First Class Magistrate Court-III, Kollam, on condition, the appellant/complainant depositing a sum of Rs.1500/- in the trial Crl.A.No.2196 of 2010 3 court. Accordingly, the appellant/complainant is directed to appear before the trial court on 20.10.2011, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the complainant/appellant depositing the above amount, he shall proceed with the case in accordance with the procedure and law and dispose the same on merit. The respondent/accused is also directed to appear before the trial court on the above date and on his appearance, out of Rs.1,500/-, Rs.1,000/- shall be paid to the accused and the remaining amount of Rs.500/- shall be deposited in the State Exchequer. V.K.MOHANAN, JUDGE. pm