IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 CRL.A.No. 2316 of 2010() ------------------------ ST.1102/2007 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... APPELLANT: COMPLAINANT ------------------------- M/S BEST BY,T.V AND HOME APPLIANCES, OPP.JAWAHAR LAL NEHRU STADIUM,KALOOR,REPRESENTED BY ITS MANAGING PARTNER MR.RAZICK,S/O.P.A.KHADER, AISHA MANSIL,KATTAYIL ROAD,KALOOR,KOCHI-17. BY ADV. SRI.K.R.VINOD RESPONDENTS: ACCUSED ---------------------- 1. SHAJI.C.R,DHANALAKSHMI AUTO FINANCE, P.O.SRIMOOLANAGARAM,ALUVA. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.A.No.2316 of 2010 ---------------------------------------- Dated the 22nd July, 2011 JUDGMENT This appeal is directed against the judgment dated 17.9.2010 of the Judicial First Class Magistrate Court-III, Kochi in S.T.No.1102/2007 by which the learned Magistrate acquitted the accused under Section 256(1) for the offence under section 138 of the Negotiable Instruments Act. Appellant herein is the complainant. 2. This Court, vide order dated 10.11.2010 in Crl.L.P. No.1081/2010, granted special leave and thus this appeal was admitted on 1.12.2010. Though notice was served on the Ist respondent, nobody has turned up and no objection is raised against allowing the appeal. 3. As per the impugned oder it appears that, neither the complainant nor his counsel was present when the Case was called on 17.9.2010. It is also discernible from the order impugned that the complainant and his counsel were regularly absent and it was under the above circumstances the learned Magistrate passed the order under section 256(1) Cr.P.C CRA 2316/10 2 acquitting he accused. The learned counsel for the appellant submitted that on the date of impugned order, the complainant or his counsel could not appear before the court below because they were held up in a traffic block that occurred in between Ernakulam and Kochi and they could not reach in Kochi, where the court situates. It is also the submission of the learned counsel that the cheque in question covers and amount of Rs.2,85,000/- and therefore an opportunity may be given to the complainant to prosecute the matter. In the light of the above submission and in the light of the order passed by the learned Magistrate, it appears that S.T.No.1102/2007 was instituted for the offence under section 138 of the NI Act where the allegation is that the cheque covers an amount of Rs.2,85,000/- was dishonoured and on the basis of he above allegation, cognizance was taken by the learned Magistrate. But as per the impugned order, it can be seen that there is no decision on merit. It is also discernible that the learned Magistrate was constrained to pass such an order because of the non-cooperation of the complainant. Under the above factual situation, according to me, one more opportunity can be given to the complainant to prosecute the matter on CRA 2316/10 3 merit, but subject to terms. In the result, this appeal is disposed of setting aside the judgment dated 17.9.2010 in S.T.No.1102/2007 of the court of Judicial First Class Magistrate -III, Kochi-5, on condition that the appellant deposits a sum of Rs.2500/- in the trial court. Accordingly, the learned Magistrate is directed to restore the above case on file on 22.8.2011 on which date, the appellant is directed to appear before the trial court either in person or through the counsel and the learned Magistrate is directed to proceed with the complaint, on his satisfaction that the complainant has deposited the amount as directed above, and to dispose of the case on merit in accordance with the procedure and law. On appearance of the accused, a sum of Rs.1500/-, out of the amount deposited as directed above, shall be paid to him and the remaining amount of Rs.1000/- shall be deposited in the state ex chequer. V.K.MOHANAN, JUDGE kvm/- CRA 2316/10 4 KVM/-