IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 CRL.A.No. 1058 of 2010() ----------------------------------- AGAINST THE ORDER IN CRl.L.P.516/2010 Dated 01/06/2010& JUDGEMENT IN CC.413/2009 of JUDL.MAGISTRATE OF FIRST CLASS, PAYYOLI, dtd.24.2.2010. ............................................................ APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ NAZEER P.M., AGED 35 YEARS, PUNATHIL MEETHAL HOUSE, IRINGATH, PAYYOLI, KOZHIKODE DISTRICT. BY ADVS. SMT.K.V.RESHMI SRI.M.N.SANDEEP RESPONDENT(S): ACCUSED & STATE ---------------------------------------------------- 1. ASHARAF N.P., S/O. MOOSA, NADUPPARAMBIL HOUSE, NOCHAD P.O., NADUVANNUR, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. Appeal No.1058 of 2010 ------------------------------- Dated this the 14th day of June, 2010. J U D G M E N T The complainant in a prosecution for the offence u/s.138 of the Negotiable Instruments Act is the appellant. In this appeal, the appellant challenges the order issued by the learned Magistrate u/s.256(1) of Cr.P.C., when the accused is acquitted on the ground that the complainant/appellant was not present inspite of the fact that, he was directed to be present for cross examination. 2. The learned counsel for the appellant submitted that, as there was a severe traffic block, neither the counsel nor the complainant could reached in the court in time and there was no wilful latches or negligence on the part of complainant in appearing before the court below on the date of the impugned order. 3. From the order impugned, it can be seen that the cheque in question covers for an amount of Rs.55,000/- and the Crl. Appeal No.1058 of 2010 2 trial of the case was in progress and the complainant has already examined in chief as PW1 and produced Exts.P1 to P5. However, it is not discernible as to, why the cross examination was adjourned and whether it was at the instance of the complainant or at the instance of the accused. It has also stated in the order dated 24.2.2010 by the JFCM Court-Payyoli that, after the payment of cost and for evidence, the matter was posted to that date. 4. Having regard to the facts and circumstances involved in the case, especially when the impugned order was passed at a stage when the trial was in progress, I am of the view that, this impugned order can be set aside, so as to take a decision on merit, after giving an opportunity to the complainant as well as the accused. It is also relevant to note that though after the chief examination of the complainant, the case was adjourned for his cross examination, he was neither present nor represented. Therefore while setting aside the impugned order, I am of the view that, appropriate terms can be fixed against the Crl. Appeal No.1058 of 2010 3 complainant. In the result, this appeal is disposed of setting aside the order dated 24.2.2010 in C.C.No.413/09 of the court below, on condition that the appellant depositing a sum of Rs.2,500/-. Accordingly, the complainant is directed to appear before the trial court on 13.7.2010, on which date the learned Magistrate is directed to restore the complaint on file, on his satisfaction that the complainant/appellant has deposits the amount as directed above and to proceed further in accordance with the procedure and law and to dispose the same on merit. Out of the amount Rs.2,500/-, a sum of Rs.1,000/- shall be paid to the accused on his appearance and the remaining amount of Rs.1,500/- shall be deposited into the State Exchequer. Criminal appeal is disposed of accordingly. V.K.MOHANAN, Judge. ami/