IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 CRL.A.No. 1740 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.877/2011 Dated 29/09/2011 CC.432/2009 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ WINNIE SAJEE, W/O.SAJEE, CC NO.1/930, OPPOSITE SANTA CRUZ GROUND, FORT COCHIN, KOCHI. BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR SRI.GLEN ANTONY RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. SUNILKUMAR.T.K., S/O.BHASKARAN, 34/793 A, FIRST FLOOR, 'SAGAR', KANNANTHODATH ROAD, EDAPPALLY.682 028. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA PIN - 682 011 BY PUBLIC PROSECUTOR SRI.K.S.SIVA KUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: amk. V.K. MOHANAN, J. ---------------------------------------------------- Crl. A No. 1740 OF 2011 ---------------------------------------------------- DATED THIS THE 11th DAY OF OCTOBER, 2011 JUDGMENT The complainant in a prosecution for offence under Section 138 of the Negotiable Instruments Act is the appellant. The accused, in his complaint, is acquitted by the court below under Section 256 (1) Cr.P.C, by order dated 13-05-2011 in CC No.432 of 2009 in the court of the Judicial First Class Magistrate-I, Kochi. Hence this appeal. 2. The counsel for the appellant submitted that as per proceedings of the court below dated 13-05-2011 it can be seen that there was change of vakalath and fresh vakalath was filed and after issuing NBW the case was adjourned to 19-02-2011 and subsequently to 16-04-2011 and 04-05-2011 and as no proper entries were made in the A-diary, neither the counsel nor the complainant could not noted down the actual date of the postings of the case. According to the counsel for the appellant it was under the above factual back ground the complainant and his counsel failed to appear before the court below on 13-05- 2011. Learned counsel for the appellant further submitted the cheque in question covers an amount of `.3,00,000/- and though cognizance was taken there is no decision on merit and therefore Crl. A No.1740/2011. -2- an opportunity may be given to the complainant to prosecute the matter on merit. 2. I have considered arguments of the learned counsel for the appellant and I have perused the order impugned as well as the order sheet produced by the appellant. From the endorsement contained on 02-12-2010 it appears that the complainant was represented and fresh vakalath was filed and it is also relevant to note that on the basis of the steps initiated at the instance of the complainant, NBW was issued against the accused. The above facts itself is sufficient to show that the complainant was prosecuting complaint effectively. From the A- diary it appears that though the case was adjourned to 19-02- 2011 from 03-02-2011, the case was adjourned and notified to 16-04-2011. So also on 16-04-2011 there was no sitting and the case was by notification adjourned to 04-05-2011. Counsel for the appellant submitted that the notified date were not endorsed in the A-diary and hence the same could not noted down by the clerk of the counsel which resulted in the failure on the part of the complainant and his counsel in appearing before the court below. Having regard to the facts and circumstances of the case, especially the cheque in question covers `.3,00,000/- and as there is no decision on merit in spite of the fact cognizance has Crl. A No.1740/2011. -3- already been taken, on the complaint of the appellant, I am of the view that one more opportunity can be granted to the complainant to prosecute the matter on merit. In the result this appeal is disposed of setting aside the order dated 13-05-2011 in CC No.432/2009 of the court of the Judicial First Class Magistrate-I, Kochi, on condition the appellant/complainant deposits a sum of `.1,500/- in the court below within one month from today. Accordingly the appellant/complainant is directed to appear before the trial court on 11-11-2011 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant deposits `.1,500/- as ordered above, the learned Magistrate is further directed to proceed with the complaint in accordance with law and procedure and dispose of the case on merit. Out of the above amount of cost `.1,000/- shall be paid to the accused on his appearance and the remaining amount of `.500/- shall be deposited in the State Exchequer. Sd/- V.K. MOHANAN, JUDGE. AMG True copy P.A to Judge