IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 CRL.A.No. 351 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.903/2007 Dated 04/10/2007 CC.940/1999 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... APPELLANT/LEGAL HEIRS OF THE COMPLAINANT K.SIVARAJ: ------------------------------------------------------------------ 1. VASUMATHI, W/O,LATE SIVARAJ, AGED 41 YEARS,473, MUSEUM CROSS LANE CHEMBUKAVU, THRISSUR. 2. SARAVANAN,S/O.LAE SIVARAJ AGED 24 YEARS, DO..DO.. 3. SREEHARI, S/O.LATE K.SIVARAJ, AGED 15 YEARS, DO...DO.... BY ADV. SRI.JOSE THETTAYIL RESPONDENTS/ACCUSED: ---------------------------- 1. MANI.C.KAPPAN S/O.CHERIAN.J.KAPPAN PROP.M/S. OKAY PICUTURES,40/80/3 VALIAVEETTIL COMPLEX, CHITTOOR ROAD COCHIN-18. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY ADV. SRI.DEEPU THANKAN FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ============== Criminal Appeal No. 351 of 2008 ==================== Dated this the 1st day of September, 2008. J U D G M E N T The legal heirs of the complainant in C.C.No.940/1999, on the files of Chief Judicial Magistrate, Ernakulam are the appellants herein. The calendar case arises out of a complaint filed by Late K.Sivaraj, the predecessor of the present appellants contending that the accused had issued a cheque for an amount of Rs.4,75,000/- to the complainant towards the balance consideration for the sale of his rights over the cinema, named, Vardhakya Puranam. Cheque was dishonoured for want of sufficient funds. Notice of demand did not result in payment and hence a complaint was filed. The case was posted to 4.12.2001 for evidence. But, in the meanwhile, the complainant died and the appellants could not engage a lawyer in time. In the result, on 4.12.2001, the court below, noting that the complainant and the counsel were absent, proceeded to acquit the accused under Section 256 Cr.P.C. Criminal Appeal No. 351 of 2008 2 2. In the facts and circumstances of the case, it seems to be clear that the absence of the complainant was for a sufficient reason. At any rate, the complainant was not alive on 4.12.2001. In these circumstances, the acquittal of the accused under Section 256 Cr.P.C. would not even otherwise be justified. I am of the view that the legal heirs of the complainant be given another chance to prosecute the complaint. In the result, the appeal is allowed. The order of acquittal is set aside. The appellants herein, legal heirs of the complainant shall appear before the court below on 17.11.2008. Court below shall consider their prayer for prosecuting the complaint and then proceed with C.C.No.940/1999. The accused shall also appear before the court below on 17.11.2008. V.GIRI, JUDGE bkn/-