IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 CRL.A.No. 1786 of 2011 ------------------------------- (AGAINST THE JUDGMENT DTD. 30.4.2011 IN C.C.NO.1064 OF 2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL) APPELLANT(S): COMPLAINANT --------------------------------------------- RAVEENDRAN NAIR, S/O.SANKARA PILLAI, 'SUDINAM', VILAYILMOOLA, KEEZHATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH RESPONDENTS(S): (ACCUSED AND STATE) ------------------------------------------------------------- 1. SHEELA RANI, D/O.SIVARAJAN, DWARAKA NO.1, NEAR RAILWAY STATION, KADAKKAVOOR, KADAKKAVOOR P.O., CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT.A.LOWSY. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1786 of 2011 ---------------------------------------- Dated this the 19th day of December, 2011 J U D G M E N T The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 256(1) of the Code of Criminal Procedure. 2. Learned counsel for the appellant submitted that the cheque in question covers an amount of `.8 lakhs and cognizance was already taken by the court below, but there is no decision on merit. It is also submitted by the learned counsel that the appellant was prosecuting the complaint effectively and vigilantly and on the date of the impugned order, neither the complainant nor his counsel in the trial court reached the court in time and therefore, the impugned order was passed acquitting the accused. According to the learned counsel, the complainant and the counsel for the complainant reached in the Crl.A.No.1786 of 2011 :-2-: trial court just after the roll call and there was no wilful laches or negligence on the part of the appellant in appearing before the court below in time. Hence, the counsel seeks one more opportunity to the complainant to prosecute the matter on merit. 3. I have already considered the arguments advanced by the learned counsel. The submission of the learned counsel that the complainant and his counsel in the court reached in the court after the call of their case, appears to be not supported by any materials and the facts available on record show otherwise. If the said version is correct, on the date of the impugned order itself, they could have made an application for the certified copy of the order. It appears that such an application was filed for the above purpose only on 3.6.2011. Even otherwise, arrangement could have been made to represent the complainant or the counsel for the complainant. That was also not done. So, the above facts would show that there was negligence on the part of the complainant in appearing before the court on the date of the impugned order. But, it is equally important and relevant to note Crl.A.No.1786 of 2011 :-3-: that the cheque in question covers an amount of `.8 lakhs and though cognizance was taken upon the complaint on the appellant, there is no decision on merit. It may be true that the complainant might have filed proof affidavit on 3.12.2005, but he was absent on the date of the impugned order on which he is expected to be present in the court or represented by his counsel. Having regard to the facts and circumstances involved in the case, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit, but such an opportunity can be given only on terms as there was laches on their part. In the result, this appeal is disposed of setting aside the order dated 30.4.2011 in C.C.No.1064 of 2004 of the court of the Judicial First Class Magistrate-I, Attingal on condition that the appellant/complainant deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only) within one month from today in the trial court. Accordingly, the learned Magistrate is directed to restore the complaint on file on 19.1.2012 on which date the Crl.A.No.1786 of 2011 :-4-: appellant/complainant is directed to appear before the trial court on the satisfaction of the learned Magistrate that the appellant/complainant deposits the above amount and the learned Magistrate is further directed to proceed with the case in accordance with the procedure and law and dispose of it on merit. On the deposit of `.1500/-, the same shall be deposited in the State Exchequer. As the case pertains to the year 2004, the learned Magistrate is directed to see that the same is disposed of as expeditiously as possible. This criminal appeal is disposed of accordingly. V.K.MOHANAN, Judge MBS/ Crl.A.No.1786 of 2011 :-5-: V.K.MOHANAN, J. CRL.A.No. 434 OF 2003 Crl.A.No.1786 of 2011 :-6-: JUDGMENT Dated:11.11.2011