IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 CRL.A.No. 342 of 2010() --------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.140/2010 Dated 17/02/2010 CC.238/2008 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE ............................................................................ APPELLANT(S): APPELLANT/COMPLAINANT --------------------------------------------------------------- JAYAPRAKASAN, S/O.SEKARAN, "KRISHNARCHANA",THEKKEDATH PARAMBA,THIRUTHIYAD, KALATHIKUNNU AMSOM DESOM,KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): ACCUSED AND STATE ------------------------------------------------------------ 1. VIJESH S.PERUVAMBA, AGED 28 YEARS, S/O.P.G.SEETHARAMAN, 19/1450, VYJAYANTHIAPARTMENTS, MADHAVAN NAIR ROAD, CHALAPPURAM, KASABA AMSOM DESOM, KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.Appeal No.342 of 2010 ------------------------------- Dated this the 1st day of March, 2010. J U D G M E N T This appeal is directed against an order of acquittal passed by the Judicial Ist Class Magistrate Court IV, Kozhikode, u/s.256(1) of Cr.P.C. 2. The allegation against the accused is that the accused/respondent had issued a cheque for an amount of Rs.1,48,000/-, which was when presented for encashment dishonoured with an endorsement “account closed”. Hence, after compliance of the statutory requirement, a complaint was filed which was taken into the file as C.C.238/2008. In the impugned order, it is stated that the counsel and the complainant was repeatedly absent and hence the accused is acquitted u/s.256(1) of Cr.P.C. 3. From the impugned order, it is not discernible as to what purpose, the case stood posted on the date of the impugned order. From the cause-title it appears that the case pertained to the year 2008. It is also not discernible from the Crl.Appeal No.342 of 2010 2 order as to whether the case was posted for the evidence of the complainant or the presence of the complainant was inevitable. This court in the decision reported in, MOHD.AZEEM V.VENKATESH AND ANOTHER (2002 7 SCC 726) and ALICE GEORGE V.DEPUTY SUPERINTENDENT OF POLICE (2003(1) KLT 339), has held that the court shall not dismiss the complaint or acquit the accused u/s.256(1) of Cr.P.C. mainly for the reason that the complainant is absent. This court in the decision reported in, 2002 7 SCC 726, has held that the approach of the Magistrate in acquitting the accused only for the absence of the complainant for one day, is not correct. Following the above decisions, particularly as there is no finding in the impugned order to the effect that, whether the presence of the complainant was inevitable and considering the fact that the cheque in question cover for an amount of Rs.1,48,000/-, I am of the view that one more opportunity can be given to the complainant to prosecute the matter and to have decision on merit. In the result, this Crl.Appeal is allowed, directing the Judicial Crl.Appeal No.342 of 2010 3 Ist Class Magistrate Court IV, Kozhikode, to restore the complaint on file, on the appearance of the complainant, who is directed to appear before the Court below on 05.04.2010, and to proceed with the complaint and dispose of the same on merit. V.K.MOHANAN, Judge. ami/