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. 2147 of 2011 ------------------------------- (AGAINST THE ORDER IN ST.272/2011 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM) .................... APPELLANT(S): --------------------- STATE BANK OF INDIA,KOLLAM BRANCH, REPRESENTED BY THANKAMANY P., MANAGER RASMECCC, 2ND FLOOR, RAVIS ARCADE, NEAR IRON BRIDGE,KOLLAM 691 013. BY ADV. SRI.J.JAYAKUMAR SRI.S.JIJI RESPONDENTS(S): -------------------------- 1. MRS.BENZY SYAM R, MUTTOTU HOUSE, NEAR MALAYIL TEMPLE,VELIYAM P.O, KOTTARAKKARA PIN 691 540. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. 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. 2147 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. Counsel for the appellant submitted that the cheque in question covers an amount of `.49,964/-, which was issued by the accused towards the discharge of her liability connected with the vehicle loan availed of by the accused. It is pointed out by the counsel for the appellant that on the date of the impugned order, the case was posted for the appearance of the accused and it is the further submission of the learned counsel that the complainant or its counsel failed to appear before the court below due to an inadvertent mistake committed by the clerk attached to the counsel of the trial court and Crl.A.No.2147 of 2011 :-2-: there was no wilful laches or negligence. From the averments in the appeal memorandum, it appears that according to the appellant, the case was posted for the appearance of the accused, but she has not turned up and therefore, steps ought to have been taken by the Magistrate, first to ensure the presence of the accused instead of acquitting her for the non-appearance of the complainant or its counsel. 3. I have carefully considered the arguments advanced by the counsel for the appellant. From the order under challenge, it can be seen that the court has already taken cognizance for the offence punishable under Section 138 of the N.I.Act based upon the complaint preferred by the appellant connected with the dishonour of cheque which covers an amount of `.49,964/-. But, there is no decision on merit. It is also seen from the order that the case was posted on 11.10.2011 for the appearance of the accused. Normally, even if the accused appeared on that day, there would not have been any fruitful turn out other than releasing the accused on bail and recording his plea Crl.A.No.2147 of 2011 :-3-: on the date of the first appearance of the accused and the court has to adjourn the case after the above proceedings. In the light of the above facts, the decision of this Court reported in Alice George v. Deputy Superintendent of Police [2003(1) KLT 339] is squarely applicable and therefore, according to me, the learned Magistrate ought not have invoked Section 256(1) of the Cr.P.C. even though the complainant was not present and not represented. Therefore, according to me, it is only just and proper to set aside the order and give an opportunity to the complainant to prosecute the matter on merit. In the result, this appeal is disposed of setting aside the order dated 11.10.2011 in S.T.No.272/2011 of the court of the Chief Judicial Magistrate, Kollam. Accordingly, the appellant/complainant is directed to appear before the trial court on 19th January,2012 on which date the learned Magistrate is directed to restore the complaint on file and proceed with the same in accordance with the procedure and law and dispose of the same on merit. Crl.A.No.2147 of 2011 :-4-: This Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ Crl.A.No.2147 of 2011 :-5-: V.K.MOHANAN, J. CRL.A.No. 434 OF 2003 JUDGMENT Dated:11.11.2011 Crl.A.No.2147 of 2011 :-6-: