IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 CRL.A.No. 2297 of 2010() ------------------------ ST.959/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... APPELLANT: COMPLAINANT ------------------------- BENNY K.J. S/O. K.M.JOY, ZODIAC REGENCY, CHAMAKKADA, KOLLAM. BY ADV. SRI.SUNNY ZACHARIA RESPONDENT: ACCUSEED AND STATE --------------------------------- ARSHAD V.P. S/O. PARIKUNJU, 130 JUNCTION MOOVATTUPUZHA P.O. ERNAKULAM DIST. PIN - 686661. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No.2297 of 2010 ---------------------------------------- Dated the 18th day of October, 2011 JUDGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant as he is aggrieved by the order dated 3.12.2009 in S.T.No.959 of 2008 of the court of Chief Judicial Magistrate, Kollam by which the learned Magistrate acquitted the accused under section 256(1) Cr.P.C. 2. Counsel for the appellant submitted that the cheque in question covers and amount of Rs.2 lakhs and the accused has not entered appearance and therefore, the court ought not have acquitted the accused under section 256(1) Cr.P.C. In support of the above submission, the learned counsel placed reliance on the decision of this Court in Joy Abraham v. Jiju Thomas (2010(2) KLT 735). In the light of the submission made by the learned Counsel for the appellant, it appears that though cognizance was taken for the offence under section 138 of the NI Act, there is no decision on merit and the cheque in question covers an amount of Rs.2 lakhs. According to the learned counsel, the accused has not entered appearance so far and, in the impugned order, it is stated that there was no application or representation on either side on the date of CRA 2297/10 2 the impugned order . If the accused has not entered appearance , especially, when the case was not posted for any particular purpose, according to me, the learned Magistrate ought not have acquitted the accused under section 256(1) Cr.P.C, especially, in the light of the decision cited supra. Therefore, the order impugned is liable to be set aside. In the result, this appeal is allowed setting aside the order dated 3.12.2009 in S.T.No.959 of 2008 of the court of the Chief Judicial Magistrate, Kollam. Accordingly, the learned Magistrate is directed to restore the above case on 18.11.2011 on which date, the appellant/ complainant is directed to appear before the trial court and 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. V.K.MOHANAN, JUDGE kvm/- CRA 2297/10 3