IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 CRL.A.No. 345 of 2010() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.121/2010 Dated 08/02/2010 ST.128/2008 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM ............................................................................ APPELLANT(S): PETITIONER/COMPLAINANT --------------------------------------------------------------- K.LEELA, D/O.KUNJULEKSHMI, AGED 64 YEARS, RESIDING AT PATTATHIL VEEDU, VENPALAVATTOM, ANAYARA, THIRUVANANTHAPURAM. BY ADV. SRI.AYYAPPAN SANKAR RESPONDENT(S)/ACCUSED/STATE: -------------------------------------------------- 1. R.GOPAKUMAR, S/O.RAGHAVAN, AGED 41 YEARS, RESIDING AT SIMI MOOLAYIL VEEDU, CHENCHERRY, MANNANTHALA, NALANCHIRA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.S.HRITHIK, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.Appeal No.345 of 2010 ------------------------------- Dated this the 1st day of March, 2010. J U D G M E N T This is an appeal preferred against an order of acquittal u/s.256(1)Cr.P.C. passed by the Additional Chief Judicial Magistrate's Court, Thiruvananthapuram, in S.T.Case No.128/2008, a case instituted upon a private complaint at the instance of the appellant for the offence punishable u/s.138 of Negotiable Instruments Act. The cheque in question involved in the case is for an amount of Rs.50,000/-. 2. From the impugned order, it appears that the complainant was absent on the date of the impugned order and there was no representation for her. It is also seen that the case was posted for the evidence of the complainant and on the last posting date also, the complainant was absent. It is also stated in the impugned order that, there was a specific direction to the complainant to be present on the date of the order. This court while considering Crl.M.A.No.1310/2010, the application to condone delay that occurred in filing Crl.L.P., has Crl.Appeal No.345 of 2010 2 found that, earlier the appellant preferred Revision before the Sessions Court, Thiruvananthapuram, as Crl.R.P.No.182/2009 against the impugned order as a wrong notion of relevant provision of law. Thus I am of the view that, the complainant is earnestly prosecuting the matter but she could not appear before the court below, inspite of specific direction for her appearance. 3. The cheque in question is for an amount of Rs.50,000/-. The grounds taken in the appeal Memorandum is to the effect that on 16.05.2009, the subsequent posting date was mistakenly noted as 16.10.2009, instead of 10.06.2009. It was for the above reason, neither the complainant nor her counsel appeared before the Court below on 10.06.2009. As the complainant/appellant was prosecuting the matter earnestly and her absence or non-representation on the date of the impugned order, was a result of mistake occurred in noting down the date, and I am of the view that one more opportunity can be given to the complainant to prosecute the Crl.Appeal No.345 of 2010 3 case but subject to terms. In the result this appeal is allowed on condition that, the appellant/complainant deposit a sum of Rs.3,000/- in the court below on her date of appearance. Accordingly, the complainant/appellant is directed to appear before the court below on 05.04.2010, on which date the court below is directed to restore the complaint and on satisfaction, that the complainant has deposited a sum of Rs.3,000/- in the court below, as directed above, out of which, Rs.1,500/- shall be paid to the accused and the remaining Rs.1,500/- shall be deposited to the State Exchequer, the court below is further directed to proceed with the case in accordance with law and procedure and to dispose the same on merit. V.K.MOHANAN, Judge. ami/