IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 CRL.A.No. 1056 of 2001(D) ------------------------------------- CC.753/1999 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... APPELLANT/ COMPLAINANT: ------------------------------------------ XAVIER, SON OF MATHAI, NANUVELIL VEEDU, ARUKANIL, VILAVANCODE, KANYAKUMARI DIST. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR, ADV. SMT.P.ASHA. RESPONDENTS/ ACCUSED AND STATE: --------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DAVID, S/O. VALSALAN NADAR, KUZHIVILA VEEDU, ARUKANI, VILAVANCODE, KANYAKUMARI DISTRICT. BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MOHAMMED. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V.GIRI, J. ------------------------- CRL.A.No.1056 of 2001 D ------------------------- Dated this the 20th day of August, 2008. JUDGMENT The complainant, in C.C.No.753/99 on the file of the Judicial Magistrate of the First Class- III, Neyyattinkara, is the appellant herein. The calender case arose from a complaint instituted by the complainant against the accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 2. The allegation is that the accused issued a cheque for Rs.1,50,000/- drawn on the Federal Bank, Amboori Branch, in discharge of a debt incurred by him. The cheque was returned for insufficiency of funds. Notice sent was not heeded to and therefore, the complaint was lodged. 3. Going by the order sheet, till 2.6.2001, the complainant seems to have been present on all the posting dates. He was present on 2.6.2001. On that day, the complaint was adjourned to 7.7.2001. Learned counsel for the appellant submits that, apparently, the posting date of 7.7.2001 was mistakenly noted by the advocate's clerk as 7.8.2001 and therefore, the complainant was absent CRL.A.No.1056 of 2001 :: 2 :: on 7.7.2001 and on 28.7.2001 to which date the complaint was adjourned. This was realised only later. The accused was acquitted on 28.7.2001. 4. The accused is not present before this court, in spite of service of notice. Having heard Learned counsel for the appellant and having perused the order sheet of the trial court, I am satisfied that the complainant must be given one more chance. 5. In the circumstances, the order of acquittal is set aside. The complaint is restored to file. The trial court shall proceed further with C.C.NO.753/99. The appellant shall appear before the court below on 6.10.2008. Taking note of the fact that the complaint was filed in the year 1999, the records shall be transmitted to the court below without further delay, if it is received. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge