IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 CRL.A.No. 1986 of 2009() ------------------------ ST.185/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PATHANAMTHITTA .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ T.HASSAN KUTTY,S/O.TEETHAR RAWTHER, PETTA PUTHAN VEETTIL,PETTA,PATHANAMTHITTA. BY ADV. SRI.M.R.SASITH RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. M.K.PRASSANAN, MANNIKKALA VADAKKETHIL,MUDIYOORKONAM P.O., PANDALAM.(CLERK,PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK) ADV. SRI.SHIBU JOSEPH & SRI.ROY THOMAS (PATHANAMTHITTA) FOR R2 BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU FOR R1. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 1986 of 2009 ---------------------------------------- Date d 31st Day of May, 2010 JUDGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant as he is aggrieved by the order passed by the learned Magistrate under section 256(1) Cr.P.C, acquitting the accused. 2. The learned counsel appearing for the appellant submitted that the complainant was prosecuting the matter vigilantly and he could not appear before the court below on the date of the impugned order as he was laid up and he had made an application through his counsel to condone his absence. But the learned Magistrate dismissed that application as no medical certificate was produced. Hence, the Counsel for the appellant submitted that one more opportunity may be given to the appellant. 3. Going by the averments contained in the appeal memorandum and in the impugned order, it can be seen that Crl.A.No.1986/2009 -:2:- the cheque in question covers an amount of Rs.1,00,000/- and the case is pertained to the year 2008. According to me, the learned Magistrate was convinced that a prima facie case was made out by the complainant and thus cognizance was taken for the offence under section 138 of the Act. It is true that from the order it appears that the case was posted for evidence as last chance. It is not discernible from the order that the complainant was persistently absent and was not cooperating with the trial of the case. On the date of the impugned order, it is clear that, the complainant was absent and he had preferred an application to excuse his absence through his counsel on medical ground. When the case was posted for evidence as last chance, it was incumbent upon the complainant to convince the Magistrate that he was physically unable to attend the court and to substantiate such a plea, a medical certificate was probably necessary and hence, I cannot find fault with the order passed by the learned Magistrate. Crl.A.No.1986/2009 -:3:- 4. However, when the cheque in question covers Rs.1,00,000/-, and there is no decision on merit, even though cognizance was taken for the said offence, according to me, it is only just and proper to give one more chance to the complainant to prosecute the same to have a decision on merit, but subject to terms. In the result, this appeal is disposed of setting aside the order dated 7.8.2009 in S.T.No.185/2008 of the court of Judicial First Class Magistrate-II, Pathanamthitta on condition that the complainant deposits a sum of Rs.2, 000/- in the court below. Accordingly, the appellant/complainant is directed to appear before the trial court on 30th June ,2010 on which date, the learned Magistrate is directed to restore the complaint on file on his satisfaction that the appellant/complainant deposits a sum of Rs.2000/- as directed above and to proceed with the complaint in accordance with the procedure law and to dispose of the same on merit. On deposit of the amount as directed Crl.A.No.1986/2009 -:4:- above, Rs.1000/- shall be paid to the accused on his appearance and the balance amount of Rs.1000/- shall be deposited into the State Exchequer. With the above direction, this appeal is disposed of. V.K.MOHANAN, JUDGE kvm/- Crl.A.No.1986/2009 -:5:- Dated:..