IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 CRL.A.No. 765 of 2010() ----------------------- ST.1163/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA CRLP.353/2010 Dated 31/03/2010 .................... APPELLANT(S): -------------- M/S. SREE GOKULAM CHITS AND FINANCE COMPANY PVT. LTD., PATHANAMTHITTA, REPRESENTED BY POWER OF ATTORNEY HOLDER, JAMES PHILIP, S/O. K.C. PHILIP, AGED 35, CHIRAMEL BUILDING, IIND FLOOR, BETHEL JUNCTION, CHENGANNUR, ALAPPUZHA DISTRICT. BY ADV. SRI.C.S.MANILAL RESPONDENT(S): --------------- 1. AMBIKA, KAVINTEKIZHAKKETHIL HOUSE, PONAKAM, MAVELIKKARA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 765 of 2010 ---------------------------------------- Dated 31st Day of May, 2010 ORDER This appeal is preferred by the complainant, in a private complaint for the offence under section 138 of the Negotiable Instruments Act . 2. The learned counsel for the appellant submitted that as there was a mistake committed by the clerk attached to the counsel for the complainant in the lower court, nobody appeared when the case was called on 26.6.2009 and there was no negligence on the part of the complainant in appearing before the court below on the above date. 3. The cheque in question is for an amount of Rs.29,900/- and the case is pertained to the year 2008. From the materials furnished by the appellant through the memorandum of appeal, it appears that on the date of the impugned order, in fact, the accused had not actually appeared before the court in spite of Crl.A.765/10 -:2:- repeated summons including the fresh summons ordered on 17.3.2009. The learned counsel for the appellant submitted that on 26.6.2009, though the accused was not physically present, he was represented through his counsel. From the above facts, it is crystal clear that as there was no appearance for the accused, even if the complainant was present, the matter is likely to be adjourned. Under the above factual situation, I am of the view that the order passed by the trial court is not sustainable especially, in the light of the decision in Don Bosco v. Partech Computers Ltd. (2005 (2) KLT 1003). Hence, according to me, the complainant can be given one more opportunity to prosecute the matter on merit, but only subject to terms. In the result, this appeal is disposed of setting aside the order dated 26.6.2009 in S.T No.1163/2008 of the court of Judicial First Class Magistrate-II, Pathanamthitta on condition that the complainant shall deposit a sum of Rs.1500/- in the court below. Accordingly, the Crl.A.765/10 -:3:- appellant/complainant is directed to appear before the trial court on 30.6.2010 on which date the learned Magistrate is directed to restore the complaint on file on his satisfaction that the appellant/complainant deposited a sum of Rs.1500/-, and to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. Out of the amount which will be deposited by the appellant, Rs.1000/- shall be paid to the accused on his appearance and the remaining amount shall be deposited to the State Ex chequer. This Appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.A.765/10 -:4:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..