IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 CRL.A.No.420 of 2001 (B) ------------------------------ CC.257/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... APPELLANT/COMPLAINANT: -------------------------------- T.G.SASI, THAKADIYIL HOUSE, CHAMPAKARA P.O., KARUKACHAL. BY ADV. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.N.SASI RESPONDENTS/STATE & ACCUSED: ----------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KARUNANIDHI, MANIYAMPARAMBIL HOUSE, KUMARAKOM P.O., KOTTAYAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.420 of 2001 ------------------------------------------------ Dated this the 27th day of February, 2008 JUDGMENT Notice issued to R2 is returned as the addressee refused to accept the same. Hence, service is declared sufficient. Heard the counsel for the appellant and the Public Prosecutor. 2. This appeal is against acquittal of the second respondent of offence under Section 138 of the N.I. Act consequent on the absence of the complainant and non-representation on his behalf in the court below, invoking section 256(1) of the Cr.P.C. 3. It is contended by the counsel for the appellant that the mistake occasioned by reason of wrong noting of the date by the clerk and further that however, an opportunity be afforded to the appellant to have his case considered on merits. Crl. Appeal No.420 of 2001 -2- 4. Having heard the submissions, I am of the view that an opportunity has to be afforded to the appellant to have his case considered on merits provided he shows active interest in having the case prosecuted in the court below. 5. In the result, I set aside the order of acquittal passed by the court below and remit the case back to the court below for disposal afresh giving an opportunity to the appellant to have his case considered on merits. He shall appear in the court below on 26/03/08 on which day the case shall stand posted in the court below. It is made clear that as the second respondent has not entered appearance in this Court, steps shall be taken by the appellant to procure the presence of the second respondent/accused in the court below without any default defect or laches. In the event of the appellant showing any further Crl. Appeal No.420 of 2001 -3- neglect in the matter of conduct of the case in the court below, he will be doing so at his risk and the court below will be justified in disposing of the case according to law even in his absence. 6. This appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/-