IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 CRL.A.No. 1823 of 2011() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.882/2011 Dated 04/10/2011 ST.1676/2009 of CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- M/S.UNIVERSAL SANITARY HOUSE, P.B.NO.3674,JEWS STREET,ERNAKULAM-682 035, A REGISTERED PARTNERSHIP FIRM,REPRESENTED BY ITS MANAGING PARTNER,MR.T.E AZAD,AGED 50 YEARS, S/O.T.H.EBRAHIM KAREEM,M/S.UNIVERSAL SANITARY HOUSE, P.B.NO.3674,JEWS STREET,ERNAKULAM-682 035. BY ADV. SRI.N.S.MOHAMMED USMAN RESPONDENT(S): ACCUSED AND STATE: -------------------------------------------------------------- 1. MR.JOMON GEORGE, PROPRIETOR, JYOTHIS ENTERPRISES,101 KAVALA, M.C.ROAD, THELLAKOM, KOTTAYAM-686 016. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. LOWSY THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl.A.No.1823 of 2011 ------------------------------- Dated this the 27th day of October, 2011. J U D G M E N T The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the order dated 8.7.2010 of the Court of Chief Judicial Magistrate-Ernakulam, in S.T.No.1676/09, by which the learned Magistrate acquitted the accused, in his complaint, under Section 256(1) of Cr.P.C. 2. The counsel for the appellant submitted that, the complainant has prosecuting the matter effectively and the cheque in question covers an amount of Rs.42,537/-. It is the further submission of the learned counsel for the appellant that, though the case was posted on 20.11.2009, the same was adjourned by notification to 16.4.2010 and again from 16.4.2010 to 14.10.2010 and the adjournments of the case by notification was published through computer 2 Crl.A.No.1823 of 2011 print out. But according to the counsel, though the adjournment of the case was notified through the computer print out to 14.10.2010, the case was called on 8.7.2010, on which date the impugned order was passed acquitting the accused under Section 256(1) of Cr.P.C. The learned counsel also pointed out that, by filing Annexure A, the matter was brought to the notice of the learned Chief Judicial Magistrate Court-Ernakulam. 3. But from the order impugned it appears that, according to the learned Magistrate, the complainant is not turning up for adducing evidence inspite of specific direction given to him. In the order it is also stated that, the complainant was called absence but the complainant represented and prays time for evidence. But according to the learned counsel, the facts stated in the impugned order are not fully correct and to substantiate the above submission, the learned counsel invited my attention to 'Annexure B', which is the 'B diary' proceedings of the 3 Crl.A.No.1823 of 2011 court. As per the endorsement on 8.7.2010, what stated is that, 'the complainant/accused absent. The complainant is not turning up for adducing evidence though specific direction was given'. But in the impugned order it is stated that, though the complainant called absent, the complainant represented and prays time for evidence. The above two versions cannot go together. However, I am not proposed to go into the details and merits of those aspects and according to me, by granting one more opportunity to the complainant, this appeal can be disposed of, since the cheque in question covers an amount of Rs.42,537/- and no decision on merit, though cognizance was taken upon the complaint of the appellant. In the result, this appeal is disposed of setting aside the order dated 8.7.2010 in S.T.No.1676 of 2009 on the files of learned Chief Judicial Magistrate court-Ernakulam. Accordingly, the appellant/complainant is directed to appear before the trial court on 28.11.2011, on which date 4 Crl.A.No.1823 of 2011 the learned Magistrate is directed to restore the case on file and to proceed in accordance with procedure and law and dispose the same on merit as expeditiously as possible. V.K.MOHANAN, Judge ami/