IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 CRL.A.No. 2093 of 2009() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.822/2009 Dated 01/10/2009 ST.21/2008 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... PETITIONER/COMPLAINANT: -------------------------------------------- S.SUJAN, RAM RAJ BHAVAN, M.R.A.NO.58, NEAR VANITHA ITI, MANAYILKULANGARA, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): ACCUSED & STATE: --------------------------------------------------------- 1. K.RAVEENDRAN, DHARUVAKATTIL VEEDU, VALLIKEEZHU NAGAR NO.133, KAVANADU P.O., KOLLAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.2093 of 2009 ------------------------------- Dated this the 28th day of July, 2010. J U D G M E N T This appeal is preferred challenging the order dated 29.8.2009 in S.T.No.21/08 of the court of Judicial First Class Magistrate Court- III, Kollam, by which the accused, who was facing charge u/s.138 of Negotiable Instruments Act upon a complaint preferred by the appellant, is acquitted. On 1.10.2009 a learned Judge of this court granted special leave to prefer this appeal and accordingly the notice was served on the 1st respondent. But today when the matter is taken up for consideration, nobody has turned up and no objection is raised against the appeal. 2. I have heard the learned counsel appearing for the appellant and also perused the judgment of the court below. 3. The learned counsel for the appellant submitted that, the cheque in question covers an amount of Rs.50,000/- and evidence was recorded in the above case and the case was stood posted on 22.7.2009 for the examination of the accused u/s.313 of Cr.P.C., on which date the accused was absent and hence the bail bond was Crl. APPEAL No.2093 of 2009 2 cancelled and ordered NBW against him. The learned counsel submitted that on 22.7.2009 itself, the complainant/appellant had took steps to execute the warrant. 4. It is also the contention that the order passed by the court below is not exclusively a criminal court but also functioning as a Munsiff's court. According to the learned counsel, usually civil cases are being called in the morning session of the court and after lunch, the criminal cases were being taken. But though the civil cases were not posted during the sitting of the court, held during the vacation of civil court, connected with the holidays, the complainant as well as the counsel for the petitioner were under the mistaken impression that, their criminal case would be taken only after the noon session, since they failed to notice the change in the schedule and thus when the case was called in the morning of 29.8.2009, neither the complainant nor his counsel was present and it was under the above circumstances, the impugned order was passed. 5. The above submission of the learned counsel is not controverted. Having regard to the facts and circumstances involved in the case, especially when the evidence of the complainant has already been over and posted for 313 examination of the accused Crl. APPEAL No.2093 of 2009 3 and especially considering the procedure and work-arrangement of the court below, which was functioning as a Munsiff's Court also, I am of the view that the learned Magistrate ought not have issued such an order of acquitting the accused u/s.256(1) of Cr.P.C. I am of the view that, instead of passing an order u/s.256(1) of Cr.P.C., the learned Magistrate ought to have granted one more opportunity to the complainant and to have a decision on merit. Therefore, this appeal can be disposed of granting one more opportunity to the appellant to prosecute the matter and to have a decision on merit. In the result, this appeal is disposed of setting aside the order dated 29.8.2009 in S.T.No.21/08 of the Court of JFCM-III, Kollam, and accordingly the appellant is directed to appear before the trial court on 31.8.2010, on which date the learned Magistrate is directed to restore the complaint on file and proceed with the same after securing the presence of the accused and to dispose the complaint on merit. V.K.MOHANAN, Judge. ami/