IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 CRL.A.No. 1635 of 2011 ------------------------------- (CC.904/2010 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, ERNAKULAM) .................................. APPELLANT(S): APPELLANT/COMPLAINANT. --------------------- M/S.J.R.G WEALTH MANAGEMENT LTD, JRG HOUSE, ASHOKA ROAD, KALOOR, KOCHI-17, REPRESENTED BY AUTHORISED REPRESENTATIVE MR.PREMCHAND R NAIR. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM RESPONDENTS(S): RESPONDENT/ACCUSED AND STATE. -------------------------- 1. JOHNSON M.J.,MAROTTIPPARA HOUSE, VANNAPPURAM P.O., THODUPUZHA-685 582. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1635 of 2011 ---------------------------------------- Dated this the 23rd day of September, 2011 J U D G M E N T The complainant/company in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since it is aggrieved by the judgment dated 15.11.2010 in C.C.No.904 of 2010 of the court of Judicial First Class Magistrate-VI, Ernakulam by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. Heard the counsel for the appellant. I have perused the judgment of the trial court, which is impugned in this appeal. 3. Counsel for the appellant submitted that the complainant was not present on the previous date of posting of the case on 7.9.2010 on which date, the learned Magistrate directed the to produce the cover to send notice etc. to the accused and accordingly, adjourned the case to 15.11.2010 on which date, the counsel for the appellant could not appear before the trial court since he had involved CRL.A.NO.1635 of 2011 :-2-: in a traffic jam on his way to the court. Therefore, the counsel submitted that one more opportunity may be given to the complainant to prosecute the matter on merit. 4. In the light of the submission made by the learned counsel and from the memorandum of appeal, it appears that the above complaint is covered by two cheques each for Rs.50,000/- and Rs.33,500/- and thus, for a total sum of Rs.83,500/-. It is also a fact that the court has already taken cognizance for the offence under Section 138 of the N.I/Act and the accused has not appeared so far. From the impugned order, it appears that notice was directly served on the complainant for his presence, due to his previous absence and still then, he did not attend the court, on the date of the impugned order. In the light of the notice issued by the court, according to me, it is for the complainant to appear before the court below in person, though he had already engaged a counsel of his choice. It is also a fact that the total amount involved in the case is about `.83,500/- and cognizance CRL.A.NO.1635 of 2011 :-3-: was already taken for the offence under Section 138 of the N.I.Act. Having regard to the above facts and circumstances, I am of the view that it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit. Since there was failure on the part of the complainant in appearing before the court in person, in terms of the direction issued by the court, according to me, it is only just and proper to impose terms in granting such an opportunity. In the result, this appeal is disposed of setting aside the order dated 15.11.2010 in C.C.No.904 of 2010 of the court of Judicial First Class Magistrate-VI, Ernakulam on condition that the appellant deposits a sum of `.1000/- (Rupees One Thousand only) within one month from today in the trial court. Accordingly, the appellant/complainant is directed to appear before the trial court on 22.10.2011 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposits a sum of `.1000/- as directed above, CRL.A.NO.1635 of 2011 :-4-: the learned Magistrate is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. On deposit of the cost by the appellant, the same shall be deposited in the State Exchequer. The Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1635 of 2011 :-5-: V.K.MOHANAN, J. CRL.A.No. OF 20 JUDGMENT Dated:2. ..2011 CRL.A.NO.1635 of 2011 :-6-: