IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 CRL.A.No. 1566 of 2003() ------------------------ CRLP.366/2003 Dated 04/09/2003 CC.1070/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... APPELLANT(S): COMPLAINANT ------------------------- K.P.JOSEPH, S/O. LATE PAILY, KIZHAKKEBHAGAM, MARKET P.O., MUVATTUPUZHA. BY ADV. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. M.K.RIFE, S/O. KASIM, MANIKKATTU HOUSE, MANARI P.O., PANIPRA, MUVATTUPUZHA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, DISTRICT COURT, ERNAKULAM. ADV. SRI.P.FAZIL FOR R1 SMT.JAYASREE MANOJ FOR R1 SRI.SREEJITH V.S. FOR R1 R2 BY P.P.SMT. KL.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1566 of 2003 ---------------------------------------------- Dated, 13th March, 2009. JUDGMENT This is an appeal at the instance of the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act as he is aggrieved by the order of acquittal passed by the court below, acquitting the accused under 256(1) Cr.P.C. 2. The amount covered by the cheque in question is Rs.1,50,000/-. It is averred that the complainant was prosecuting the complaint vigilantly and he had filed the proof affidavit and himself was subjected to cross examination and it was further posted for evidence on 31.5.2003, which date the counsel mistakenly noted it as 31.6.2003. Hence, on 31.5.2003, neither the complainant nor his counsel was present. Therefore, it is prayed that an opportunity be given to prosecute the complaint after setting aside the impugned order. 3. I have heard the counsel for the appellant and also the counsel for the Ist respondent. As indicated above, the matter was being effectively prosecuted by the appellant/complainant and the Clerk of the counsel for the complainant mistakenly noted the date as 31.6.2003 instead of 31.5.2003 and therefore when the case was called on 31.5.2003, neither the complainant nor his counsel was present. From CRL.A.NO.1566/03 -:2:- the impugned order it appears that the date of offence is 7.6.99 and the complaint was filed on 15.10.99 and the impugned order was passed on 31.5.2003. From the above facts, it appears that the case in hand seems to be an older one and whatever may be reasons stated by the appellant for his absence, in the given facts and circumstances of the case, it cannot be said that the order of the court below is illegal or incorrect. 4. However, there is no decision on merit in the case wherein the amount involved is Rs. 1,50,000/-. It is also not a case where no evidence was adduced by the complainant. Towards the prosecution of the complaint, proof affidavit was filed and, further, the complainant himself was subjected to cross examination and thus it was posted for further evidence of the complainant. Therefore I am of the view that one more opportunity can be given to the complainant to prosecute the complaint but subject to terms. In the result, this appeal is allowed setting aside the order dated 31.5.2003 in C.C.No.1070/99 of the court of the Judicial First Class Magistrate Court I, Muvattupuzha on condition that appellant/complainant deposits a sum of Rs.1500/- in the court below. Accordingly, the parties are directed to appear before the court below on 4.4.2009 on which day the court below is directed to take up the complaint on file and on satisfaction that the complainant/appellant has deposited a sum of CRL.A.NO.1566/03 -:3:- Rs.1500/-, out of which Rs.750/- shall be paid directly to the accused and Rs.750/- shall be deposited in the court below which shall be paid to the State Exchequer, the court below is further directed to proceed with the complaint and dispose of the same on merit. V.K.MOHANAN, JUDGE kvm/- CRL.A.NO.1566/03 -:4:-