IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH SEPTEMBER, 2011 / 6TH ASWINA,1933 CRL.A.No. 1691 of 2011 ------------------------------- ( LEAVE HAS BEEN GRANTED BY ORDER DTD.18.8.2011 IN CRLP.745/2011 ORDER DTD. 2.8.2008 IN ST.1943/2006 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM) .................... APPELLANT(S): APPELLANT/COMPLAINANT ---------------------- C.G.KARUNAKARAN NAIR, CHOORAKKATTIL HOUSE, S.H.MOUNT P.O., KOTTAYAM - 6. BY ADV. SRI.REJI GEORGE SRI.RAJEEV.P.NAIR SMT.MANJU RAJAN RESPONDENTS(S): ACCUSED AND STATE -------------------------- 1. PRASAD JOSEPH, MACHUKATTU HOUSE (MMDS), MANGANAM P.O., KOTTAYAM - 18. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1691 of 2011 ---------------------------------------- Dated this the 28th day of September, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 2.8.2008 in S.T.No.1943 of 2006 of the court of Judicial Magistrate of the First Class-I, Kottayam by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. Heard the counsel for the appellant. I have perused the judgment of the trial court impugned in this appeal. 3. Counsel for the appellant submitted that though the learned Magistrate has already taken cognizance for the offence under Section 138 of the N.I.Act connected with the dishonor of cheque, which covers an amount of Rs.3,50,000/-, there is no decision on merit. It is also the submission of the learned counsel that the evidence on the part of the complainant is not complete though the CRL.A.NO.1691 of 2011 :-2-: chief examination is over. The counsel for the appellant submitted that due to the mistake committed by the Clerk attached to the counsel for the complainant in the trial court in noting down the actual posting date of the case (i.e., 2.8.2008), which is adjourned from 25.7.2007, neither the complainant nor his counsel appeared before the court on 2.8.2008, and consequently, the learned Magistrate acquitted the accused as per the impugned order. Counsel submitted that an opportunity may be given to the complainant to prosecute the matter on merit and have a decision thereon. 4. I have carefully considered the above submission, Except the submission with respect to the reason for non-appearance of the complainant and his counsel in the trial court on the date of the impugned order, the other facts and submission appear to be correct because from the impugned order, those facts are discernible. 5. Having regard to the facts and circumstances involved in the case, according to me, it is only just and proper to grant one more CRL.A.NO.1691 of 2011 :-3-: opportunity to the complainant to prosecute the matter on merit, especially when the court has already taken cognizance and the cheque in question covers an amount of `.3,50,000/-. But, according to me, such an opportunity can be given to the appellant only on terms since there was negligence on the part of the complainant in making available himself for cross-examination though he had adduced evidence in part. In the result, this appeal is disposed of setting aside the order dated 2.8.2008 in S.T.No.1943 of 2006 on the file of the Judicial Magistrate of First Class-I, Kottayam on condition that the appellant/complainant deposits `.2,000/- (Rupees Two Thousand only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court on 28.10.2011 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposits a sum of `.2000/- as directed above, CRL.A.NO.1691 of 2011 :-4-: the learned Magistrate is further directed to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused, a sum of `.1000/- out of the above amount, shall be paid to the accused and the remaining amount of `.1000/- shall be deposited in the State Exchequer. The Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1691 of 2011 :-5-: V.K.MOHANAN, J. CRL.A.NO.1691 of 2011 :-6-: CRL.A.No. OF 20 JUDGMENT Dated:2. ..2011 CRL.A.NO.1691 of 2011 :-7-: